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Immigration and the US Constitution

March 18, 2013 Ilya Somin 110 Comments

This is a guest post by Ilya Somin, a professor of law at George Mason University and blogger at The Volokh Conspiracy (posts by Somin only). Somin has argued for substantially freer immigration, particularly in the context of immigration to the United States, on both moral and practical grounds. A list of some of his writings relevant to open borders can be found at the Open Borders page about Somin.

The US Constitution does not in itself tell us what kind of immigration policy is right and just. But it is relevant to debates over immigration in at least three important ways. First, some opponents of increased immigration mistakenly argue that the Preamble and other parts of the Constitution commit the US government to ignoring the potential benefits of immigration to would-be migrants themselves. Second, there is a strong case that the original meaning of the Constitution restricts Congress’ power to limit migration, though it does give Congress broad power to deny citizenship to migrants. Finally, some structural aspects of the Constitution help limit the potential “political externalities” of open immigration, thereby weakening claims that the only way to prevent immigrants from having negative effects on public policy is to keep them out of the country entirely.

I. The Constitution does not Justify Ignoring the Benefits of Immigration for Immigrants.

The Preamble to the Constitution states that the document’s purpose is to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Some opponents of immigration claim that the inclusion of the phrase “ourselves and our posterity” suggests that the Constitution was only meant to benefit present US citizens and their descendants, thereby justifying the US government in ignoring the rights and welfare of potential migrants in making decisions on immigration policy. However, the term “posterity,” as used in the Preamble, is probably metaphorical rather than literal – denoting future residents of the United States in general rather than merely just those who were citizens in 1787 and their descendants. In the 18th century, as today, the word “posterity” was often used to denote “future generations” in general rather than merely the biological descendants of a particular group of people. In 1787, and for almost a century thereafter, the US had a virtual open borders policy, and the Framers of the Constitution had no intention of changing that. They knew that millions of immigrants would be among the “posterity” referred to in the Preamble.

Even if we assume that the “posterity” referred to in the Preamble really does refer only to those who were citizens in 1787 and their descendants, it does not follow that that the Constitution justifies ignoring the effects of immigration restrictions on would-be immigrants. As the Founding Fathers well knew, there are moral limits on what governments are allowed to do in pursuit of the interests of their citizens. For example, the United States has no right to invade Mexico and enslave its people – even if doing so would enhance “the general welfare” of Americans. Similarly, there are moral constraints on the extent to which the US government is justified in forcibly consigning would-be immigrants to lives of poverty and oppression in Third World countries. Neither the Preamble nor any other part of the Constitution states that the US government is entitled to ignore moral constraints on the means it uses to achieve the goals of the Constitution.

A closely related restrictionist argument is the claim that aliens are not entitled to the various constitutional rights enumerated in the Constitution. In reality, most of the rights guaranteed by the Constitution are extended to all persons who enter areas governed by the United States, whether citizens or not. As James Madison put it at the Virginia ratifying convention for the Constitution, “[I]t does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection.” In the few cases where the Constitution really does protect only citizens, the term “citizens” is explicitly used, as in the Privileges and Immunities Clause of Article IV, Section 2. Such explicit references to citizens would be unnecessary if there was an implicit understanding that all constitutional rights are limited to citizens alone.

II. Congress’ Power to Restrict Immigration.

The detailed enumeration of congressional powers in Article I of the Constitution does not include any power to restrict migration as such, even though it does include the power to make laws concerning the “naturalization” of foreigners and “regulate Commerce with foreign Nations.” The Naturalization Clause does not create a power to prevent foreigners from entering the country. It merely allows Congress to set conditions for the grant of citizenship.

The scope of the power to regulate “commerce” has long been a source of controversy. But at the time of the Founding and for many decades thereafter, the dominant interpretation was that it merely gave Congress the power to restrict trade and other commercial transactions, not to forbid movement as such. The Commerce Clause also gives Congress the power to regulate interstate as well as international commerce. Yet few if any eighteenth and nineteenth century jurists would have argued that Congress therefore had the power to forbid Americans from moving from one state to another.

In recent years, some leading legal scholars have argued that the original meaning of the Commerce Clause gives Congress the power to regulate all “social interaction” that affects multiple states or foreign nations. But this interpretation would give Congress nearly unlimited power, and is inconsistent with the dominant original understanding that congressional power was intended to be strictly limited in order to limit infringements on the power of the states. For a more detailed critique of the interaction theory, see this article by Georgetown law professor Randy Barnett.

Congress can restrict the entry of some foreigners by using its other enumerated powers. For example, the power to declare war and to spend money for the “common defence” includes a power to forcibly restrict entry by enemy spies, terrorists, and soldiers. The power to “define and punish” offenses against “the law of nations” presumably allows Congress to restrict the movement of pirates and other violators of international law. But there is no general enumerated power giving Congress the authority to ban the entry of people simply because they are foreign nationals.

Not until the Chinese Exclusion Act of 1882 did Congress adopt a significant law banning migration as such, as opposed to restricting eligibility for citizenship or excluding individuals who posed a specific threat that Congress could address under one of its other enumerated powers. And, even then, there was considerable controversy over the law’s constitutionality, despite the fact that the Act was popular due to widespread anti-Chinese prejudice.

Modern Supreme Court decisions such as Gonzales v. Raich hold that Congress has the authority to regulate virtually any “economic activity” (defined broadly enough to cover most migration) and that it has “plenary” power to restrict immigration. It is unlikely that these doctrines will be reversed any time soon. Adherents of “living constitution” theories of constitutional interpretation can, consistent with their commitments, support this overriding of the text and original meaning. But professed originalists – who include many anti-immigration conservatives – are in a more difficult bind. This is especially true in light of the fact that conservative originalists have been in the forefront of those arguing for a narrow interpretation of Congress’ powers under interstate Commerce Clause. If the term “commerce” has a narrow definition when it comes to interstate commerce, the same applies to foreign commerce, since the Constitution literally uses the same word to cover both, giving Congress the power to “regulate Commerce with foreign Nations, and among the several States.”

A possible way out of this bind for originalists is the claim that the federal government has an “inherent” power to restrict international migration, regardless of whether it is explicitly enumerated in the Constitution. That was in fact the basis on which the Supreme Court upheld the exclusion of Chinese in 1889. But if the Constitution presumes such an inherent power to restrict migration, surely there is an equally inherent power to control naturalization. Yet Article I includes an explicit grant of the power to establish a “uniform Rule of Naturalization.”

Finally, even if Congress does have the power to exclude migrants for any reason it wants, nothing in the Constitution requires it to do so. The Constitution allows federal and state governments to do many things that are ill-conceived or unjust, and large-scale restrictions on immigration could be among them.

III. The Constitution and Potential Political Externalities of Immigration.

Sophisticated critics of immigration – particularly conservative and libertarian ones – often emphasize the problem of “political externalities:” the danger that immigrants will use the power of the vote to cause harmful changes in government policy. Several parts of the Constitution help restrict such dangers.

First, as noted above, the Naturalization Clause gives Congress the power to restrict migrants’ eligibility for citizenship. Under current law, most legal immigrants are eligible for citizenship only after five years, and only if they speak a modicum of English and can pass a citizenship test that many native-born Americans would fail. This ensures that immigrants will be at least partially assimilated before getting citizenship rights, and makes it less likely they would support laws that undermine core American values. If necessary, Congress could lengthen the waiting period for citizenship, make the test harder, or both. Living for many years in a nation that denies them citizenship rights may be unfair to immigrants. But most would prefer living as a non-citizen in a relatively free and prosperous society to life as a full citizen in poor and often oppressive Third World nations.

Second, the Constitution’s requirement that each state has two senators leads to overrepresentation of states with small populations. Most such states are relatively rural states far from the East and West coasts, and they tend to have few immigrants. The resulting overrepresentation of native-born citizens diminishes the relative power of immigrant voters, and thereby helps alleviate any political externalities they might cause. The Constitution also restricts most powerful elected offices to citizens, and allows Congress to restrict non-citizen eligibility for federal welfare programs.

The political effects of the Naturalization Clause and the Senate are double-edged swords. In some cases, immigrant voters might use their influence to improve American public policy rather than make it worse. When that happens, restrictions on eligibility for citizenship and overrepresentation of native-born citizens in the Senate turn out to be harmful rather than beneficial. But those who worry about the political externalities of immigration are likely to be pessimists rather than optimists in their assessment of the influence of of immigrant voters. Such pessimists should welcome the fact that the Constitution has many mechanisms for controlling such externalities without resorting the more draconian approach of banning migrants from entering in the first place, and thereby consigning many to a lifetime of misery in the Third World.

UPDATE: At the Originalism Blog, University of San Diego Law Professor Michael Ramsey raises an objection that has also been advanced by some commenters on this site:

Professor Somin argues, among other things, that the Constitution’s original meaning does not give Congress general power to restrict immigration…

I think his argument may well be correct. But if it is, I think it quite plainly leads to a result Professor Somin does not mention, and which the folks at Open Borders do not want hear: it would leave to the states the power to restrict immigration.

I agree that the states had the power to restrict immigration under the original 1787 Constitution. But matters are far less clear after the Fourteenth Amendment, which, among other things, restricts state government discrimination against aliens. As the Supreme Court pointed out in Plyler v. Doe (admittedly in an opinion written by non-originalist Justice William Brennan), several of the framers of the Amendment specifically stated that one of its purposes was to curb such discrimination.

But if it turns out that the price of limiting congressional power to restrict immigration is increasing state power to do so, that’s a tradeoff I’m more than happy to accept. Some states might choose to severely limit immigration, but – thanks to interjurisdictional competition – others will embrace it. And life in any American state is a far better deal for immigrants than being consigned to the Third World, which is the effect of federal laws banning migration.

UPDATE #2: Michael Ramsey’s colleague and co-blogger Mike Rappaport comments on this post here. Mike agrees with me that “the Constitution does not give Congress the power to regulate immigration as such.” But he also argues that Congress does have the power to regulate some other types of international movement, such as crossing international boundaries for commercial purposes. I largely agree. But such restrictions are a far cry from being able to ban mere migration across international lines.

Mike also raises the issue of state authority to impose migration, barriers, but concludes (as I do above) that state migration laws are unlikely to impede immigration as much as federal ones do, given interstate variation and competition. He does not address my point about the ways in which the Fourteenth Amendment might restrict state governments’ power to regulate migration.

Finally, Mike suggests that if the Supreme Court had struck down the Chinese Exclusion Act in the 1880s, Congress might have been given the power to ban immigration by constitutional amendment. That is certainly possible. But the Constitution is extremely hard to amend, and it is far from clear that the supporters of the Exclusion Act had the necessary two-thirds majority in both houses of Congress, plus winning the support of three quarters of state legislatures.

Open borders and the Curley effect

March 18, 2013 Grieve Chelwa 3 Comments

James Michael Curley, a four-time mayor of Boston, used wasteful redistribution to his poor Irish constituents and incendiary rhetoric to encourage richer citizens to emigrate from Boston, thereby shaping the electorate in his favor. As a consequence, Boston stagnated, but Curley kept winning elections.

Thus begins the abstract to an interesting 2005 paper by Edward Glaeser and Andrei Schleifer that formally models what they term as the “Curley effect”. With the Curley effect, an incumbent can almost guarantee reelection by instituting policies that result in the mass exodus of that part of the electorate likely to vote against him/her (such as the “rich” or a different ethnic group). These policies are most certain to reduce the welfare (sometimes in a drastic way) of the entire jurisdiction under the incumbent’s control. Among the politicians who put the Curley effect to “good” use, in addition to James Michael Curley, were the former mayor of Detroit Coleman Young and the current president of Zimbabwe Robert Mugabe. Glaeser and Schleifer have this to say about Young:

Coleman Young was elected the ﬁrst black mayor of Detroit in 1973 in a four percentage point victory over John Nichols, the white police commissioner. The election split along racial lines. Every white precinct and more than 90% of the white vote favored Nichols. Every black precinct and more than 90% of the black vote favored Young.

Young’s racial favoritism can be seen in his tax policy and his distribution of city services. A 1982 referendum tripled the commuter tax from 0.5% to 1.5%, and raised the residents’ income tax rate from 2% to 3%. This tax, which had no impact on Young’s poorer black supporters, strengthened the incentive for the better off to leave Detroit.

Did Young hurt Detroit? Did he hurt the black residents of Detroit? There is no question that Detroit was in much worse shape when Young left ofﬁce than when he ﬁrst entered it. Its population fell from 1.51 million in 1970 to 1.03 million in 1990, a 32% decline. The unemployment rate as a percentage of the civilian labor force rose from 10.3% in 1969 to 20.6% in 1990. The percentage of households living below the poverty line rose from 18.6% to 29.8%. Nearly all the victims of this unemployment and poverty were Young’s black supporters. Over Young’s 20 years, surely in part due to his policies, Detroit became an overwhelmingly black city mired in poverty and social problems.

And this about Robert Mugabe:

Twenty years after Mugabe took over, Zimbabwe descended into a mire of poverty, corruption, and anarchy. Mugabe himself did not appear to care for wealth, but he did single-mindedly pursue power and ofﬁce. To that aim, his policies induced the whites, and others with skills and capital [such as middle and upper class black Zimbabweans], to ﬂee. He pursued these policies knowing, and encouraging, the emigration that would follow.

Global open borders are likely to reduce the costs of emigrating (no need to obtain travel visas, apply for asylum, obtain work permits and so on) and in this way might enhance the appeal of the Curley effect to the type of autocrat described by Glaeser and Schleifer. This is likely to be so in Africa where ethnicity is often exploited by politicians. If my hypothesis about an open borders-encouraged Curley effect is true, then one might raise the followng question: might the heightened prospect of the Curley effect (and the ensuing across the board reduction in welfare) constitute a reasonable objection to global open borders?

I don’t think so. Even if open borders led autocrats to implement the Curley effect in great numbers, the same open borders would stand to counteract the negative welfare effects. Open borders would, for instance, allow a greater proportion of those targeted by the autocrat’s policies to easily relocate to some other jurisdiction than would have been the case had there been no open borders with a Curley effect. Those leaving would include both the well-off who would have emigrated anyway (have specialized skills, wealth or connections in high places across the border) and those who otherwise would not have left due to the prohibitive costs associated with moving to another country (facing border patrol, obtaining work visas, risking your life at illegal crossing points, facing the prospect of being placed in some notorious refugee camp, etc…). In the extreme case, everyone who was not on the winning side would relocate leaving only those deriving some benefits (however short-lived) to remain. It is reasonable to presume that some blacks must have left Detroit for greener pastures during Coleman Young’s term as mayor, if only because it is difficult to account for Detroit’s substantial population decline by appealing to white emigration only. This was probably more blacks than would have left if citizens of Detroit had been required to obtain entry visas into the United States. In the more recent case of Zimbabwe, approximately 1 million Zimbabweans had by 2008 left Zimbabwe for South Africa. The sense I get from speaking to Zimbabweans living in South Africa is that a lot more of their brethren (spouses, children, brothers, sisters, parents and friends) would have escaped Mugabe’s ruthlessness had it been easier to relocate south of the border without having to meet many unreasonable requirements to work and live in South Africa or any other country bordering Zimbabwe for that matter. So even if global open borders were to encourage the Curley effect, it is very likely that the great portion of the negative welfare effects would be counteracted by migration – in the extreme case, all negative welfare impacts would disappear since everyone affected would find it in their best interests to leave.

I however don’t think that the sort of autocrat described by Glaeser and Schleifer is really responsive to open borders in the way suggested by my hypothesis. For one thing, the Curley effect has been documented among autocrats facing relatively open borders (Curley and Coleman) to those facing relatively closed borders (Mugabe) that it is somewhat far-fetched to suggest that being a Glaeser/Schleifer-like autocrat becomes an even more attractive proposition under open borders. But what seems likely is that open borders would present a way out for those who find themselves victims of the Curley effect.

HT David Henderson

In defense of the nation-state

March 17, 2013 Nathan Smith 5 Comments

This post is a response to Vipul Naik’s recent post on open borders versus no borders, but I thought it deserved a separate post. A defense of the nation-state against a critique like Vipul’s must be (a) a defense of there being any state, plus (b) a defense of state being national in scope.

First, the state. Vipul is an astute reader, and his being left in some doubt as to where Principles of a Free Society comes down on the question of state legitimacy is a very intelligent response to the book. At first, the book seems to be building up a defense of a Lockean social contractarian state, with natural rights, property, social contract, etc. But mid-way through this exercise, there is a concession that the social contract defense of state legitimacy, though Principles suggests that it’s the best available, is not very successful. An anarchist reader might conclude that all historical states are illegitimate, and go on to try to imagine a stateless world, and to develop a program for how best to pursue it. But I don’t really do that. Vipul suggests I’m a “minarchist.” I had never heard this nifty word before but I assume it means what it sounds like: a believer in minimal government. That’s a decent characterization of me, though possibly it might pin me down more than I would like. At any rate, I’m not an anarchist. Why not? (Principles doesn’t single out anarchism for refutation since it’s such a small minority view.)

Vipul distinguishes “anarcho-capitalism” from “anarcho-socialism,” but that’s not the typology I would adopt. I would distinguish pacifist-anarchism from all kinds of anarchism that allow some violence. If the definition of the state is an agency that claims a monopoly of violence, then one way to be an anarchist, a non-believer in the state, is to completely reject all violence. The New Testament can be read as a template for such a way of life. It isn’t really a political program at all. To such basic political questions as how are people to be defended from assault?– the answer of the pacifist-anarchist is, “They aren’t. We’ll try to prevent assault through moral suasion, and our non-violent example may have great power to achieve moral suasion. We won’t know until we try. But whatever happens, we must refrain from violence.”

Alternatively, you can accept violence in self-defense, and maybe defense of property or something, but deny that violence should or legitimately can be monopolized by one agency called the state. That leads to speculations about competition and cooperation among private security agencies and whatnot. To me, that’s just the state by another name, and I don’t really see “anarchism” in this sense as being as distinctive or coherent as the term suggests. Perhaps I’d translate some versions of anarchism as: All currently existing states are illegitimate, we need to dissolve them and establish new states, legitimately based on voluntary consent. But I think there are systematic reasons why such a project can’t be achieved, or at any rate can’t be planned and permanently, sustainably established. To put it differently, I doubt that any political equilibrium is attainable without coercion that lacks a warrant in the defense of natural rights, or to put it in pithier language, without injustice. The Christian church may, I suspect, be an example of a “state” that has been based on the voluntary principle for two thousand years, though one would have to appeal a hypothesis about its secret, invisible history, and write off a lot of coercion by official ecclesiastical hierarchies as not “really” the work of the Church. In any case, even if this is true, it would be the exception that proves the rule. Also, a purely voluntary state, a state without injustice, might, I suspect, be attainable briefly by a generation of peculiar virtue and under the influence of a particularly admirable personality. But fallen human nature would reassert itself. Apologies: this paragraph was perhaps unusually speculative and vague.

I think the “common sense morality” which Huemer and Caplan like to take as a starting point isn’t entirely valid as a starting point because its content is importantly shaped by the experience of being the citizen of a state. But my “natural rights” approach is akin to Huemer/Caplan’s in that it starts an ethical inquiry from the “micro” level, and from our moral intuitions. I won’t say more on that, however, until I’ve read Huemer’s book. But I think that in practice, aspirations to utopian nonviolence, unless one takes the monastic path and tries to realize them at a personal level, should be tempered with a good deal of deference to the flotsam and jetsam of tradition and to the imperatives of fundamental eye-for-an-eye justice. And while idolatry of the state is one of the great, permanent dangers of the human condition, it’s usually best willingly to accept the leadership of a moderately just and beneficent state, when it’s available.

So much for my defense of the state. What about the nation-state?

The first thing to observe is that nation-states are a novelty. The Roman Empire wasn’t a nation-state. Athens and Sparta in the golden age of classical Greece were not nation-states. Carthage wasn’t a nation-state. Egypt might qualify, but not, I think, Babylon or Assyria, and not the Persian empire. Some of these, along with the Han empire in China and its various successors, might be described as civilization-states, an entire civilization, united in a single polity. The Chinese kingdoms of the Warring States period before the Han don’t seem to have been nation-states either. Ancient Israel was something like a nation-state, and it would be interesting to know to what extent ancient Israel provided, through the culture of Christianity, the template for the modern nation-state and, by extension, the global regime of nation-states that exists today. Several modern European nations– England, Poland, Russia– seem to have had “Chosen People” complexes at some point in their history. Still, there were no nation-states in Europe in the High Middle Ages. France was not a cultural and linguistic unity at the popular level. What unity it had was feudal in character: France was the area where all the ascending links of vassal to suzerain converged in a certain king. Its borders shifted a good deal from Charlemagne’s time to that of St. Louis, and kept shifting thereafter, down to the end of World War I. Of course, by 1870, the people were thought to deserve a say in the matter, and the annexation of Alsace-Lorraine by Bismarck’s Germany was an outrage. In the later Middle Ages, national consciousness began to take shape in England and France, foreshadowing those modern nations. Italy and Germany were not nation-states at all then. Italy was home to many city-states during the Renaissance, which were then absorbed into non-Italian empires; and the “Holy Roman Empire” in Germany, which eventually came to be dominated by the Hapsburg dynasty, was not at all like a nation-state, with its weak centralization, its variety of subject peoples, and its antique and dynastic principle of legitimacy. Incidentally, the Hapsburg Empire, in which the Austrian school of economic liberals was born, may deserve more respect as a possible template for modern polities. Only in the late 19th century, as the nation-state model became normative, were Italy and Germany created as nation-states.

That the nation-state is a comparatively recent development is a clue that we should not expect it to prevail permanently as the worldwide norm for political organization. Still, there is a good deal to be said for it in the meantime.

There is a deep connection between the nation-state and democracy. If democracy is “rule of the people,” who are “the people?” The answer is usually this or that “nation,” and it’s not obvious what else it could be. (“Nation” and “people” can be near-synonyms, of course.) But what’s a “nation,” anyway? A common language is the most obvious marker, but that’s clearly not a universal rule. India is one nation (I suppose) with many mother tongues; the English-speaking world consists of at least six independent nations; and there are even more Spanish-speaking countries. The unity of India is probably best understood as a function of Hinduism and history with a little help from geography, and all of those factors sometimes help to define nations, but none are necessary or sufficient. Britain and Ireland were one polity for seven hundred years, but are now separate. Similarly Russia and Ukraine, which also (for the most part) share a common religion. Italy was a geographical expression before it was a nation, but there is no particular geographical logic to the separation of France from Germany from Belgium from the Czech Republic, etc. Germany has long been home to both Catholics and Protestants. For that matter, though Catholicism is crucial to Irish identity, yet there is a “Church of Ireland” which is Protestant. And of course, Catholicism is the common religion of many nations without being a reason to unite them into one. There’s a lot of historical accident here, and the best definition is probably Benedict Anderson’s (suitably arbitrary) “imagined communities.” To define the nations is to define the sets of people who, under democracy, govern themselves. To drive the point home, note that one of the characteristics of democracy is the tolerance for a “loyal opposition.” Loyal to what? Not to the present government, exactly, else they would not be an opposition. Loyal, rather, to the nation, a reality deeper and more permanent than the ruling regime.

Democracy is a sort of idol in our times, and tends to be much overrated. It has considerably merit nonetheless, but to appreciate it properly one must start by realizing that from a strictly logical perspective, democracy has grave flaws, to which a kind of myth of democratic beneficence blinds modern people. There can be “tyranny of the majority,” but as Mancur Olson argued, there can be tyrannies of minorities too, small groups that can organize to pursue their special interests while the public doesn’t know what’s going on. More fundamentally, why people vote at all is rather mysterious– one vote essentially never decides an election, so why bother?– and if it’s just that voting is, after all, negligibly cheap, then we shouldn’t expect people to vote in an informed way, since researching politicians’ platforms is expensive. Bryan Caplan’s Myth of the Rational Voter argues that people are “rationally irrational” at election time, choosing opinions that feel good rather than opinions that are true, since there’s effectively no cost to being wrong. When the issue space has more than one dimensional (or when preferences are not “single-peaked”), cycling can arise, where majority rule would cause collective preferences to cycle permanent among three or more alternative policies.In theory, democracy is a hopeless mess.

I think part of the reason democracy works better than this in practice is that people identify with, take an interest in, and care about their nation-states. I know a lot of people who follow politics as one follows a sport. A lot of money gets donated to political campaigns, sometimes by lobbyists with a tacit quid pro quo, but often freely and altruistically, for the good of the country as someone conceives it. People talk about politics in their spare time. All this raises the level of political information well above what would be “rational” for people to acquire. I think it’s a reasonable approximation to characterize people’s behavior as somewhat altruistic in many situations, and especially in the voting booth, where one’s actions potentially affect so many other people. If we imagine people having “vectors” of “altruism coefficients,” what matters in the voting booth may be not so much (a) the extent to which voters are altruistic, since even tiny altruism coefficients (say, 0.01) are enough to swamp self-interest, as (b) whether they are disproportionately altruistic towards certain sub-groups of their fellow citizens in such a way that some groups become effectively disenfranchised. This is why democracy in ethnically fragmented states can occasionally lead to disasters, to racial segregation or ethnic cleansing or civil war or breakdown leading to totalitarianism. Anyway, that democracy, which in theory doesn’t seem like it should be able to work at all, in practice often manages to muddle along tolerably well, has a lot to do with the national basis of most democratic states.

What’s democracy good for? Vaguely, I think it’s a good thing for the people who live under a regime to have a say in how it behaves. Politicians in democracies really do pay attention to what voters want. Voters know something about the laws because they have to live under them. In the aggregate, they have a lot of information relevant to what policies work, and don’t work. Public opinion is a very imperfect vehicle for aggregating this information, but it does seem to seize on and condemn clear cases of corruption and atrocious human rights abuses (at least against citizens), and make policymakers at least try (or at least pretend, but then you can’t fool all the people all the time) to serve the general welfare (e.g., as crudely summarized in macroeconomic statistics). It is sometimes effective in securing and reinforcing freedoms, though these might have to emerge and grow strong at the level of private mores before democracy can be trusted to protect them. Britain was free before it was democratic. The danger nowadays is not so much “tyranny of the majority” as the exaggeration of the extent to which democracy confers legitimacy. There is a widespread sense nowadays that democracies can do anything that they want, that law, or even that right and wrong, have no source, origin or meaning except in the will of the people. The Constitution is the exception that proves the rule, for while laws democratically passed may be (in the US) ruled unconstitutional (other countries have similar arrangements), the Constitution itself is probably assumed to derive its force only from the of certain past electoral majorities. And note that if democracy consists in people having a say in the laws that govern them, then immigration restrictions are the limiting case of undemocratic law, since the set of people who are subject to them is the mathematical inverse of the set of people who have a say in making them. For all these reasons, there is an urgent need to limit the power of the democratic nation-state, but I would not be in a hurry to dissolve it.

If one agrees that the democratic nation-state should have limited powers, there is no logical problem with combining open borders and the nation-state. One can say that it’s a good idea, at this particular historical moment, to organize political power along nation-state lines, but that there are powers nation-states should not have, and one of these is to exclude non-citizens from their territory arbitrarily and by force. They can defend their borders against armed invasion, and probably even against unarmed migrants whom they have good reason to believe constitute an immediate threat to public order or even public health. (By “public health” I mean “freedom from contagious diseases.” The phrase is often used in a more elastic sense.) To the extent that a certain power to tax arises with the provision of judicial support for property rights and provision of public goods– admittedly a difficult question– it extends to non-citizen residents as well as to citizen residents. They cannot justly exclude foreigners simply to prevent their citizens from having to see poverty on the streets, or to avoid incurring moral responsibility for foreigners’ welfare (if such moral responsibility exists, it in any case does not depend on whether foreigners are resident on the national territory or not), or to keep up domestic wage rates. It is desirable to arrange for some change in public opinion, law, and/or international relations that will render this practice intolerable and obsolete, like slavery. But justice allows more discretion to regulate the acquisition of citizenship. More generally, constitutions, law, and political civil society need not be fundamentally revolutionized. Such is a world of democratic nation-states with open borders.

Is that sustainable in the long run? Could the democratic nation-state maintain its essential nature in the presence of huge masses of non-citizens, whose basic human rights would be recognized and respected, but who would have little or no access to political participation? Wouldn’t the democratic character of a state be compromised if there were so many resident non-voters? To some extent, yes, though we should always bear in mind that “voting with the feet” is a substitute for voting in the ballot box, in some ways a superior substitute. There might be a problem with resident non-voters being alienated and trying to exert influence by extra-political channels. Much here would depend on the evolution of political norms. After all, there was a time when the acceptance of the rightful leadership of dynastic kings was as universally accepted as democracy is today. One can envision a future in which migrants took political exclusion for granted and didn’t complain about it, or even think about it. Still, there might have to be deep, subtle changes in the ideology that undergirds political legitimacy, to the detriment of the democratic nation-state model. “Altruism vectors” might sometimes be altered in ways that make the democratic nation-state dysfunctional or unstable– though closed borders is no guarantee against that, either. I suspect that open borders would accelerate the decline of the nation-state.

But I also think the nation-state is destined to decline anyway. We’ve seen that it’s historically novel. I think its rise is a side-effect of the printing press. The printing press reshaped the conversation of mankind on national lines, empowering and homogenizing vernaculars, giving rise to the daily newspaper, inducing the decline of Latin and other lingua franca. Eventually political arrangements caught up to the new consciousness. Now the internet is reshaping the conversation of mankind again, fueling the dominance of English, making it irrelevant where something is published, globalizing social networks. Eventually– but in this case, as with printing/nation-states, it may take a long time– political arrangements will catch up with that too. If this prediction is right, open borders might be compared to constitutional monarchy. They’re a way of ameliorating an institution whose legitimacy, strong for now, is doomed to long-term decline, and easing, even if it might also accelerate, the transition to political arrangements more suitable to the society and economy that the latest technologies are gradually bringing into being.

Response to Steve Sailer: The Art of Flourishing While Being Swamped

March 16, 2013 Nathan Smith 1 Comment

Steve Sailer writes:

For many years, the Wall Street Journal editorialized in favor of a five word Amendment to the U.S. Constitution: “There shall be open borders.” So, I’ve long been interested in trying to estimate just how many people would move to the U.S. if this highly respectable policy recommendation were ever actually implemented.

George Borjas pointed out that about 1/4th of all Puerto Ricans moved to the U.S. mainland after open borders started. The flow was only slowed by granting immense tax breaks to American companies who set up shop in Puerto Rico.

Even without open borders, over one-fifth of all Mexicans in the world live in the U.S.

And, as I pointed out in VDARE in 2005, about five billion people live in countries with lower average per capita GDPs than Mexico.

So, open borders advocates ought to at least provide us with an estimate of what fraction of that five billion they would expect to immigrate here (assuming, for the sake of argument, that the effects of open borders wouldn’t diminish the appeal of the United States to immigrants, which it no doubt would)…

[quoting the New York Times] A 1986 compact gave the United States continued military access, while the Marshallese got the right to work and live in the United States indefinitely without visas. More than a third of the Marshallese — about 20,000 — have seized the opportunity.

I may attempt a numerical estimate of this sort at some point. But my main response to the concern about being swamped is that immigrants get surplus value from coming, and some of this can be taxed away to hold native harmless, for example via DRITI taxes. A few very crude calculations may illustrate.

1. Suppose the 1/3 rate from the Marshall Islands applied to the 5 billion in countries poorer than Mexico. Roughly 1.5 billion immigrants come to the United States, where they earn average incomes of, say, $40,000. (This is a concession to Sailer’s suggested assumption that “the effect of open borders wouldn’t diminish the appeal of the United States to immigrants.” If immigrant incomes fell sharply under open borders, though this is plausible, Sailer’s assumption wouldn’t come close to holding.) In this case, immigrants would be earning $60 trillion of GDP. If we tax this income at a 10% rate, that gives us $6 trillion with which to compensate natives. If we distribute this among (roughly) 300 million native and naturalized citizens, we could pay out $20,000/year to every citizen, or $80,000 to every family of four. Alternatively, we could structure it progressively, with, say, $50,000/year minimum income for every citizen, which would then be reduced by 25% of labor income, so that individuals earning $200,000/year or more would get no benefit. For the moment I’m assuming that (a) all currently existing taxes remain in place, (b) immigrants pay currently existing taxes in addition to the surtax, and (c) government spending per capita remains roughly constant. But very likely the best plan would involve large tax cuts, and government might be able to provide services to a larger population without a proportional increase in its costs. I’m talking about the medium-to-long run here. Granted, to scale up the US population by six quickly would be difficult.

2. Suppose, more conservatively, that 1/10 of the people in countries poorer than Mexico, i.e., 500 million, moved to the US, and earned an average of $20,000/year. That’s $10 trillion of immigrant-generated GDP. We could tax that at a 20% rate and get $2 trillion of GDP, enough to pay benefits averaging $20,000 per person per year to the poorest one-third of Americans, in cash and in kind.

3. Maybe the “worst case” scenario is if a whole lot of people come but don’t earn much. Suppose 2 billion people immigrate to the United States and earn an average of only $10,000. That’s $20 trillion of immigrant-generated GDP. We could tax that at a 15% rate and get $3 trillion worth of revenue with which to hold harmless native-born US citizens (now a small minority of the resident population), for example by providing benefits at an average rate of $20,000 per person per year. Owners of real estate– that’s most Americans– would enjoy huge windfall gains by selling out to developers as the greatest building boom in the history of the world erected teeming hordes of tenements to house the huddled masses. Water prices would probably rise a lot, and huge quantities of food would have to be imported, but on the other hand, many, many factories would open, as the US would swiftly rise to overwhelming dominance in manufacturing. Not only affluent families, but probably unemployed natives dependent on transfers from the government, could hire personal servants.

As I said, these estimates are crude, even fanciful, and I’m not sure how useful it would be to attempt to make them more precise. (For example, do the costs of government scale linearly, super-linearly, or sub-linearly with population? An interesting question, but too controversial for any answer to be of much help– though “linearly” would be my first approximation.) It seems clear open borders wouldn’t be introduced overnight in this fashion. In all the scenarios suggested, native-born US citizens would comprise an absolute minority of US residents, and within US residents, transfers would be going from the relatively poor to the relatively rich. Would such an arrangement be politically sustainable? Well, there are plenty of precedents, e.g., pre-revolutionary France. But that parallel might suggest another danger: a kind of immigrant French Revolution, with the huddled masses overthrowing the privileged natives by force. Having raised that specter, let me add that it is not a remotely plausible threat for now. Anyway, the crude calculations should make it clear that as far as the mere economics are concerned (putting institutions to one side, and assume one doesn’t scruple to redistribute surplus value through tax-and-transfer policy), the upsides of being swamped swamp the downsides.

Conservative parties can win over immigrants: the Canadian story

March 15, 2013 John Lee 5 Comments

I’ve suggested before that although the US Republican Party’s position amongst immigrant communities in the US seems weak, that is not reason to assume this will always be the case for the foreseeable future. I recently stumbled across an interesting 2010 profile of Jason Kenney, the Conservative politician who currently is the Canadian Minister of Citizenship, Immigration, and Multiculturalism. (If you are having a hard time imagining that a Republican could ever fill an equivalently-titled office in the US, perhaps you have a clue as to why the GOP finds it so hard to penetrate immigrant communities.)

Kenney first assumed responsibility for immigrant outreach in 2006. He found that although he was able to cite numerous Conservative policy successes that helped immigrants settle in Canada, this wasn’t convincing to immigrant voters. As it turns out:

“‘You’re a community with famously conservative values. Incredibly hard-working. Entrepreneurial, devotion to family, intolerant to criminality. These sound like our values. Conservative values.'” Why, he asked, weren’t Korean Canadians already turning to the Conservatives?

“One of the guys around the table was the president, believe it or not, of something called the Korean Canadian Evangelical NDP Small Businessmen’s Association. My jaw just about hit the floor. It sounded like the association of the hens for the fox, right?”

What had happened, the guy said, was that when a lot of Koreans settled in Burnaby, B.C., in 1972, there was a New Democrat MP who was simply good at showing up to churches and community events. He helped people with their immigration case files. People got to know him. So when that MP retired and his constituency assistant who’d worked on immigration files inherited the NDP nomination, the Korean evangelical businessmen gave her their support. And so on ever after.

“Thirty-five years of voting history established by a relationship!” Kenney said now, still marvelling. “And the light went off for me. How incredibly important relationships are. It’s blindingly obvious, but for newcomers those initial relationships that they establish are hugely important.”

Sure, these things are symbolic. But as economist Robin Hanson says, politics is not about policy. In a democracy, our elected officials not only govern, but represent us. Say it with me: we vote for people who represent us. As Kenney found, if you don’t even reach out to someone, why would they ever think that you want to represent them? So today, Kenney’s Twitter account is a litany of cultural events:

“Hosted a town hall meeting in Montreal’s Chinatown on how best to combat immigration marriage fraud.” “Had a great encounter with the large & enthusiastic congregation of Notre Dame des Philippines.” “Did roundtable with folks from the Egyptian, Pakistani, Iraqi & other communities to encourage their participation in the PSR [private sponsorship of refugee] program.” “Did a great event with the Montreal Afghan community in support of the superb Conservative candidate in St. Lambert, Qais Hamidi.” “Had one of the best meals I can remember at the Khyber Pass restaurant in Montreal, together with Afghan friends. Highly recommended!”

How easy is it to imagine a similar flurry of Tweets from a Republican politician? (Of course, with US Republicans, their approach to outreach is a little worse than benign neglect: as Muslim blogger Rany Jazyerli has observed, in recent times whenever Republicans have been bragging about attending a Muslim community event, it’s because — to put it politely — they were there to cast doubt on Muslims’ loyalty to the US.)

Of course, Kenney and Conservative Prime Minister Stephen Harper haven’t been just coasting on doing some goodwill tours — they have proven they walk the talk on immigration policy:

In power they moved quickly to produce legislative change that could prove their bona fides. They cut in half the $975 immigrant right-of-landing fee, introduced by the Chrétien Liberals in 1995 as a deficit-fighting measure, in their first year in office.

They eliminated visa requirements for visitors from eight formerly Communist countries in Europe. Skyrocketing refugee claims from the Czech Republic’s Roma population made Kenney reintroduce visa requirements for that country a year later, but he still counts the move as a net gain. So do many Eastern European Canadians. Wladyslaw Lizon, former head of the Canadian Polish Congress, will be running for the Conservatives in Mississauga East-Cooksville in the next election.

Kenney has also pursued some less liberal measures: some other initiatives of his include restructuring the Canadian skilled worker immigration programme (liberalising in some areas, restricting in others), and pursuing some arbitrary immigration policies (notably, defending his use of discretion to keep British MP George Galloway out of Canada on very tenuous grounds). That he is not an open borders advocate does not make his accomplishments any less impressive, or instructive.

Meanwhile, the same publication which profiled Kenney in 2010 recently did another story on him, with more background behind how he came to be responsible for immigrant outreach, dating back to when, as a 26-year-old activist in 1994, he told Stephen Harper that demographic destiny demanded that the Conservatives, as a matter of survival, win over immigrant communities. This second profile also has more interesting details on Kenney’s immigration policy views, and anecdotes of his continued ability to win over immigrants by understanding how to communicate with them:

Advertise in their media, ideally timing to coincide with events with cultural significance like the Cricket World Cup;
Learn to speak their languages: the article suggests Kenney has learnt enough Punjabi to understand when a speech is promoting political extremism;
And as their representative, recognise what’s important to them: Kenney led the initiative to apologise for past government abuse of Chinese immigrants, and also sought government recognition of certain genocides.

Small things in the greater scheme of it all, but as Kenney’s former chief of staff says: “It might not seem important to the majority of the population, but for the concerned communities, it’s huge.”

There are conceivable reasons to doubt the Republicans can pull off a similar feat as Kenney and the Canadian Conservatives. Some skeptics argue the Conservatives of Canada are barely, if at all, to the right of Democrats in the US. It’s plausible that the median immigrant voter will be more right-leaning than the median Democratic politician, but much much more left-leaning than the median Republican politician. But until the Republicans stop denigrating immigrant communities and start reaching out to them, until they can find their Jason Kenney, it seems rather early to declare that it is all but impossible for them to win over the immigrant vote.

The photo of Jason Kenney in the header of this post is owned by the Policy Exchange, and used under the Creative Commons Attribution licence.

Open Borders: The Case