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My reasons for skepticism of linking open borders to legalizing private discrimination

In the world as it stands today, the pro-immigration/pro-immigrant crowd has aligned itself with the anti-discrimination/anti-racist crowd. There is clear common cause in more ways than one:

Many open borders advocates accept or even deploy these arguments, and this helps establish common ground with many mainstream pro-immigration people. However, there is another interesting strain of thought in the open borders movement, stemming from its ideologically libertarian-leaning wing, that affirms the importance of allowing private discrimination. The idea is that freedom of association is of intrinsic value, and forbidding private discrimination interferes with this right. Interestingly, from this perspective, the quest for open borders (specifically framed in terms of the right to migrate and right to invite) and the quest for allowing private discrimination have affinity: both can be justified based on the importance of freedom of association (I discuss this at greater length a little further down in the post, before getting into the implications for open borders).

Now, to be clear, all three positions discussed (open borders, moral opposition to racism and discrimination, and the importance of letting private discrimination be legal) are mutually consistent. Nonetheless, the position that private discrimination should be legal and the view of discimination as morally problematic are connotatively in tension, particularly once we get outside the circle of people with hardcore libertarian beliefs.

An interesting twist to this triad of views was introduced by my co-blogger Nathan Smith, in his blog posts No Irish Need Apply and Private discrimination against immigrants is morally fine, and should be legal and later in a post on the Open Borders Action Group on Facebook. Nathan argued that allowing private discrimination might be a way to appease people concerned about their ability to avoid (particular types of) immigrants that we’d see more of under open borders. He therefore proposed (open borders + allow private discrimination) as a package deal (in the language of this post of mine, this would qualify as a complementary policy to open borders, though if the legalization of discrimination was restricted to discrimination against immigrants, it would qualify as a keyhole solution in that jargon). In this post, I’ll dissect different arguments of the sort Nathan has articulated and alluded to, and explain my reasons for skepticism of them.

Some background on discrimination

In many contemporary polities, particularly in the United States, opposition to discrimination (particularly along certain dimensions such as race and ethnicity) has attained a moral primacy, at least rhetorically. Philosophically, this has puzzled me. Consider a recent topical category: when incidents of police brutality are reported, there is often significant emphasis on whether the police behavior was discriminatory on the basis of race, often even more so than the question of how justified or excessive the police action was. Racial discrimination was a key theme in discussion of the recent 2015 Texas pool party incident, even though the officer in question had, to begin with, arrested a white girl (this was not part of the viral video, but happened before the video commenced). This led to the weird situation where the officer sought to defend his behavior from charges of racism by pointing out that he had arrested a white girl, even though that arrest too was unjustified.

The emphasis on discrimination can be counterproductive because it can lead to the rejection of Pareto-improving solutions that are discriminatory. In the context of migration, for instance, the expansion of migration quotas or relaxation of migration barriers for people of certain classes or nationalities increases discrimination between potential migrants, even if, overall, it expands human freedom. Reasons of this sort are why those I know who are more hardcore libertarians, as well as more utility-oriented or efficiency-oriented, tend to not give primacy to narratives focused on discrimination. My point here isn’t that hardcore libertarians or utilitarians support discrimination, but rather, that they don’t treat discrimination as a key yardstick by which to judge the morality or desirability of actions.

However, I believe that the focus on discrimination in public discourse is not as irrational or ungrounded as it might appear from a purely philosophical standpoint. I think there are a few reasons for this:

  • It feels awful to be discriminated against, and more generally to be in an environment where you’re constantly wondering whether other people’s behavior toward you is influenced by prejudice: Obviously, in cases where the people who might be discriminating against you are people with a huge amount of authority over you (such as police officers, consular officers, or judges) the feeling is terrible. The fear that they are prejudiced against you, whether justified or not, adds insult to any injury they may inflict on you. But even when the other actors involved have little power over you, the fear that their behavior towards you is based on discrimination for reasons you cannot control, can be demoralizing. My co-blogger Nathan has pointed out in his posts the standard economic wisdom that, even if many people discriminate against a particular race or ethnicity, the material harm to members of that race or ethnicity is minimal as long as there are enough people who don’t discriminate. But despite this small material harm, the psychological damage, even if not debilitating, is nothing to be laughed at. If you know that 20% of restaurants will refuse to serve you due to your race, or that 10% of police officers will stop you for absolutely no reason other than your race and subject you to a time-wasting and humiliating strip search, this detracts from your ability to partake of public life with dignity.
  • In addition to the direct effects of discrimination against those parties being discriminated against (as well as others who my incorrectly believe themselves to be the victims of discrimination) there are also ripple effects on economic and social activity. Some of it might get canceled because of the impediments and inefficiencies created by discrimination. A business might choose not to hire the best employee because of discrimination by its customers against the employee’s race/ethnicity. A group of people might decide not to go to a restaurant or cinema hall that they would have enjoyed, because one member of the group would be barred from the place on account of race or ethnicity.
  • Discrimination, insofar as it largely targets people who lack the relevant kind of power (which may be political, economic, or social) means that the people with the power to change policies are often insulated from the consequences. If police officers behave in humiliating ways only when interacting with people who look young and poor, then those who run city governments and police forces, who tend to be older and richer, may never experience the brunt of humiliating policing. Since these individuals don’t get firsthand experience in the implementation of the policies, they have little incentive to change them. A non-discriminatory and egalitarian approach makes sure that those creating and influencing policies eat their own dog food.

The libertarian perspective, that I largely endorse (although this isn’t an issue that I’m passionate enough about to generally argue in favor of) acknowledges these points, but balances them against these considerations (note that while I try to articulate below a libertarianish view, many libertarians don’t subscribe to it, and many non-libertarians do):

  • In the context of coercive state actors, the libertarian perspective seeks to reduce the coercive, discretionary power that lies with these actors in the first place. The less coercive power these actors have, and the less discretionary leeway the actors have, the less scope there is for them to discriminate in invidious ways, while also reducing abuse of these powers at large. In the context of police abuse, reduced police authority to arbitrarily stop and detain people, the legalization of victimless crimes, and an end to Broken Windows policing-like approaches, reduce the scope for those in authority to harass people at large, and also to do so in a discriminatory fashion.
  • In the context of private discriminators, the libertarian position acknowledges that those discriminated against have experiences ranging from unpleasant to traumatizing. However, the libertarian position still gives importance to freedom of association, even when it leads to bad consequences for others, as long as it does not directly violate their rights. Libertarians also point out that forbidding discrimination can have bad effects not only on those engaged in the odious type of discrimination that is the target of the law but in other, more innocuous, forms of discrimination.

James Joyner articulates the second point well:

Paul’s views are identical to those I held when studying Constitutional Law as an undergrad and not all that far removed from my current position. There’s no question in my mind that private individuals have a right to freely associate, that telling owners of private businesses whom they must serve amounts to an unconstitutional taking, and that it’s none of the Federal government’s business, anyway. Further, in the context of 2010 America, I absolutely think that business owners ought to be able to serve whomever they damned well please — whether it’s a bar owner wishing to cater to smokers, a racist wanting to exclude blacks, or a member of a subculture wishing to carve out a place for members of said subculture to freely associate with only their kind out of purely benign purposes.

The problem, circa 1964, was that there really was not right to freely associate in this manner in much of the country. Even once state-mandated segregation was ended, the community put enormous pressure on business owners to maintain the policy. That meant that, say, a hotel owner who wished to rent rooms without regard to color really weren’t free to do so. More importantly, it meant that, say, a black traveling salesman couldn’t easily conduct his business without an in-depth knowledge of which hotels, restaurants, and other establishments catered to blacks. Otherwise, his life would be inordinately frustrating and, quite possibly, dangerous.

In such an environment, the discrimination is institutionalized and directly affecting interstate commerce. It was therefore not unreasonable for the Federal government to step in using their broad powers under the 14th Amendment. I’m still not sure parts of the Civil Rights Act of 1964 (especially the issue in question here) or the Voting Rights Act of 1965 (especially treating individual states differently from others) are strictly Constitutional. But they were necessary and proper in the context of the times.

The problem that libertarians and strict Constitutionalists have, however, is that precedents set under extreme and outrageous conditions are often applied to routine and merely inconvenient ones. (Or, as the old adage goes, “Hard cases make bad law.”) Once someone’s private business is transformed by fiat into a “public accommodation,” there’s precious little limit to what government can do with it. Requiring private individuals to treat black people with a modicum of human dignity is one thing and dictating what kind of oil they can cook their French fries in or how much salt they can put on them is quite another. But, in principle, they’re not much different.

Piyo draws parallels between freedom of association and freedom of speech, noting the irrationality in how people unequivocally defend freedom of speech while treating defense of freedom of association as anathema:

I confess that I’ve always found this controversy rather puzzling. Consider the following two propositions:

1. A citizen should be allowed to promote white supremacy and racial segregation in a personal blog, in a book, in flyers that he hands out on street corners, to his children, or among his neighbors at weekly meetings at his home

2. A citizen should be allowed to refuse service to non-whites at his store

I find it incredibly odd that believing #1 is considered normal, enlightened, and mainstream, while believing #2 is considered crazy at best and mega-, KKK/slave-owning/Django-level racist at worst. In fact, judging from the controversy over Paul’s stance, I think many or most people believe that it is totally impossible to believe #2 without being racist. Don’t get me wrong; I can easily imagine a reasonable set of beliefs that would lead a person to agree with #1 and disagree with #2. However, I can’t imagine how everyone seems to believe the following

3. #1 is obviously true and everyone should believe so, and #2 is obviously false, and anyone who disagrees is either evil or being willfully ignorant.

I can think of two reasons why a person might confidently believe that #2 is false. Unfortunately, neither of these theories explain the widespread belief in #3.

[…]

More reasonable, I think, is to conclude that almost nobody’s attitude toward #1 or #2 is based on any kind of ratiocination. Through a combination of historical accident and the all-powerful status quo bias, endorsing #1 has become a way to express to others that you, too, value freedom, and rejecting #2 has become a way of expressing that you, too, think racism is bad. If you hold these beliefs, then you’re part of our “group”.

For more discussion of the libertarian perspective on discrimination and some pushback to it, see this Cato Unbound discussion of the subject.

UPDATE: In an email, reproduced with permission, Nathan responds to my point about it being awful to be discriminated against:

The place where I had least sympathy with the argument was where you talked about being discriminated against and how horrible it feels. I can see why it would be pretty bad to be in the position of African Americans before the civil rights movement, when widespread discrimination was enforced by a sinister conspiracy of the law with the domestic terrorists of the KKK, and when most of the population discriminated against you so that your opportunities to flourish in life were severely limited by discrimination on every side, and when discrimination did seem to be motivated by hatred. But I can’t see how it would be so bad to suffer from occasional statistical discrimination not motivated by hatred. Suppose a taxi cab driver were to tell me, “Sorry, it’s nothing personal, but I don’t pick up young men in this part of town, because young men commit most of the crime, and I only have to pick up the wrong fare once, and my wife’s a widow.” If I needed the cab that would be inconvenient of course, but I wouldn’t feel profoundly insulted. I’d feel sorry for the guy for being in such a risky job and earnestly hope and pray for his safety. The notion that it’s an intolerable indignity to be discriminated against, but it’s NOT an intolerable indignity to be forced by the government and its anti-discrimination laws to open one’s home or business to people one doesn’t like or approve of, seems utterly insane. If it feels so horrible to be discriminated against today, even when it causes negligible inconvenience, I suspect that’s either because we’ve been brainwashed into thinking discrimination is the root of all evil, or because what certain groups (LGBT especially) really want is to coerce people to APPROVE of them, a common motive among those who have power. Discrimination against LGBT is an expression of disapproval and as such must be suppressed.

Bryan Caplan’s weighing of the relative importance of immigration restrictions and anti-discrimination law

In a blog post titled Association, Exclusion, Liberty, and the Status Quo, Bryan Caplan, who supports both open borders and an end to anti-discrimination laws, compared the importance of the issues:

I don’t deny that laws against exclusion occasionally have important effects. But their main effect in the modern U.S. economy isn’t to reduce exclusion, but to pressure businesses to either overpay or avoid hiring workers who can easily sue for “discrimination.”

Now consider regulations on the freedom of association. Many are marginal, too. Not much would change if you legalized gay marriage or polygamy; they’re just niche markets. But one class of regulations has a massive effect: immigration laws. Indeed, they probably have a bigger effect than all other regulations combined.

It’s simple. Billions of people around the world live on a few dollars a day or less. Under open borders, tens of millions of them would migrate to the U.S. every year. Remember: Even if you’re an illiterate peasant who doesn’t understand interbank transfers from Bangladesh, credit markets and/or employers would be happy to front the money for airfare.

This immigration flow wouldn’t stabilize until real estate prices massively increased and low-skilled wages drastically declined. The U.S. population could easily increase by 50% in a decade. New cities would blanket the country. The level of output would skyrocket – and its composition would rapidly change, too. Whether you love this vision or hate it, you can’t deny that free association would radically and rapidly reshape the face of America.

I’m as supportive of the right to exclude as anyone. But current restrictions on this right are pretty minor. There are plenty of ways for markets to engineer exclusion, and there’s not much demand for greater stringency. In contrast, restrictions on the right to associate are massive, and there is enormous pent-up demand to migrate. Hundreds of millions of people want to move here, landlords want to rent to them, employers want to hire them – but the law won’t allow it.

Contrary to my conservative friend, then, libertarians aren’t the ones with a blind spot. He is. While restrictions on exclusion are occasionally irksome, they rarely ruin lives. Immigration laws, in contrast, usually condemn their victims to life – and often early death – in the Third World. Libertarians rightly emphasize the freedom to associate, because the status quo’s restrictions on exclusion are minor and mild – and the status quo’s restrictions on association are massive and monstrous.

A closer look at the link between legalizing private discrimination and open borders

Here’s Nathan’s Open Borders Action Group Facebook post (which is the most recent formulation of his view, though his previous blog posts are also worth reading):

Would it be useful to the open borders movement to roll back anti-discrimination laws? Consider the following argument, made to a nativist: “Hey, if YOU don’t like immigrants, fine, you don’t have to do associate with them. But stop interfering with those of us who DO want to associate with them.” This argument needs refining, but I think some form of it could have a lot of force if it weren’t for “public accommodation” laws that force all residents of the US to integrate. As long as so-called “anti-discrimination” laws are in place (misnamed of course since for now discrimination against undocumented immigrants is not only allowed but mandated), this argument doesn’t work very well, since the government might force you to hire immigrants. In effect, the current policy choice is whether discrimination against the foreign-born should be mandatory or illegal, whereas of course, the sensible middle way is to make it voluntary. But to get to it, we’d have to legalize discrimination. Now, I’m hopeful that the attack on religious freedom by the LGBT lobby will backfire and lead to a general revival of tolerance and freedom of association, as the absurdity of having the government force people to bake a cake for a “wedding” they don’t morally approve of, forces us to revisit some deep ethical mistakes we’ve been making for the past generation. If this happens, would it help the open borders cause?

There are several different flavors of the argument, that I’ll list before opining:

  1. If private discrimination were legalized first, the open borders position would be more philosophically defensible than it is now.
  2. The (open borders + allow private discrimination) package deal is more philosophically defensible than mere opening of the borders, while private discrimination continues to remain illegal.
  3. If private discrimination were legalized first, the open borders position would be more practically feasible than it is now.
  4. The (open borders + allow private discrimination) package deal is more practically feasible than mere opening of the borders, while private discrimination continues to remain illegal.

I agree with the view (1): the freedom-based arguments for open borders make more sense in a world where people are freer to not associate with immigrants if they so choose, and the other arguments are largely unaffected. I think the change to the strength of open borders isn’t too huge, largely because of the reasons that Caplan articulated in his post that I quoted above.

I also agree (weakly) with (2): bundling open borders with a broader expansion of the freedom to associate (and exclude) would be more philosophically defensible than merely opening the borders. However, unlike (1), (2) only applies from the perspective of the libertarian case. Those whose reasons for supporting open borders are more egalitarian might well disagree with (2). If you agree with Caplan’s post, however, the effect size either way is relatively small.

This leaves (3) and (4), the questions of practical feasibility. Regarding (3), I believe that there are good arguments on both sides, and I think ultimately it will depend on the details of the societal changes that lead to a relaxation or termination of anti-discrimination laws in the first place. However, I am very skeptical of (4). I don’t think an (open borders + allow private discrimination) package deal is more practically feasible. I don’t think those keen to see open borders become a reality should attempt to draft such a deal or push for it. I think the main benefit of discussing such a combination, apart from the philosophical clarity it offers, is that if somehow the circumstances changed and such a deal became the main way to proceed with open borders, then our thoughts on the issue would be clearly fleshed out.

I’ll begin by elaborating on (3). Why might anti-discrimination laws, such as those surrounding public accommodations in the United States, be repealed or relaxed? I believe there are three broad categories of reasons:

  1. The moral argument for the freedom to associate and exclude gains widespread acceptance.
  2. Efficiency-based arguments against such laws take force. This could be helped by public outrage or disgust at what is perceived as spurious use of anti-discrimination laws.
  3. People interested in discrimination on the basis of race, ethnicity, or some other criterion push for the changes, and their views become influential among the public or among policymakers.

I think that, if (1) is the prime mover for the change in laws, there is a decent chance that public opinion would have also shifted more in favor of freer migration, and Nathan’s logic might then accentuate the effect. In the case of (2), public opinion may remain largely unchanged on migration, but Nathan’s logic might help tip it slightly more in favor of free migration. However, in the case of (3), I think it’s quite likely that public opinion will be more hostile to immigration than before. Even if Nathan’s logic serves to counter that somewhat, I think the net effect would still be in a significantly restrictionist direction. I think that, given what we know today about public opinion, in the highly unlikely event that anti-discrimination law is repealed, this is more likely to happen because of reason (3) than because of the other two reasons (though I expect the overall chances of such repeal as pretty low, so this is merely an academic observation).

Finally, as for (4), the reason I’m skeptical is that, in the present day, there isn’t really a large coalition (outside of hardcore libertarians and efficiency-oriented folks) who support the repeal of anti-discrimination law out of a love of true freedom, as opposed to a desire to facilitate discrimination per se. And, outside of libertarians, people have trouble separating private action from government-enforced action. So, this bundle wouldn’t really appeal to many people, and in addition, means that open borders advocates might lose the support of the broader, mainstream, pro-immigrant people.

John Lee offers a detailed response to Nathan’s Facebook post that I largely endorse:

While this is an interesting idea, I don’t see how you would be able to build a political coalition around both liberalising migration and repealing anti-discrimination laws. I’m skeptical that xenophobes would tolerate having more immigrants around if they were allowed to discriminate against them; I mean, I’m persuadable that their opposition to open borders might diminish somewhat, but I don’t think it’d go away.

A lot of the costs that people complain about as far as integration goes have to do with things that anti-discrimination law doesn’t really meaningfully impact: pressing 1 for English, overhearing funny languages in public, not being able to ask for directions in a strange neighbourhood where nobody looks like you or can speak your own language, etc. Repealing anti-discrimination laws solves for essentially none of these xenophobic complaints.

(Technically repealing anti-discrimination law might partially solve for the “press 1” complaint since that’s to some degree a policy caused by public accommodation laws, but in a free market operating in a diverse society, a lot of companies would naturally provide multilingual servicing anyway. Malaysia and Singapore don’t have meaningful anti-discrimination laws but multilingual servicing is omnipresent in the market because of how diverse their societies are.)

As an aside, this idea is not even applicable outside the Western world; to Christopher’s point, I don’t think this is a “reform” that can be bundled into anything in Asia or Africa, perhaps even Latin America, because most non-Western countries don’t have much anti-discrimination laws to speak of. Speaking from my experience, it’s common to see classified ads in Malaysia and Singapore specifying that they won’t accept job candidates or tenants of particular sexes or genders. (Recently some companies have tried to capitalise on public distaste for these kinds of ads by running ads which explicitly state that they don’t discriminate.)

Now to be sure, introduction of new anti-discrimination laws to these non-Western societies would spur blowback, and I would generally advise against trying to bundle liberal immigration reforms with new anti-discrimination laws in these societies. But that’s separate from trying to bundle liberal immigration reforms w/ anti-discrimination legislation repeals in societies that already have these laws.

He later writes:

[T]he reality of mood affiliation makes me skeptical that one could build a coherent political coalition aligned on just these two things without that coalition consisting pretty much entirely of libertarians.

A couple of my comments in the thread are also relevant, and I quote them below:

I don’t think that the repeal of such legislation would make the world more friendly to open borders: your argument for would be balanced by an argument against, namely that the legitimization of discrimination as morally acceptable might make people more forthright about using it as a basis for public policy (given that people generally have trouble keeping private preferences out of the domain of government-enforced public policy).

“But I don’t think there’s any point in pitching an advocacy strategy to such numbskulls. If mankind is as stupid as that, we won’t make any headway. Fortunately, mankind does sometimes exhibit a capacity to think such moderately subtle thoughts as, “Discrimination against the foreign-born should be legal for private individuals but not be mandated by law.””

Most people would be able to understand this idea if they tried hard enough, but people aren’t generally inclined to put in a lot of effort into evaluating political positions. In general, I would expect that a move that legitimizes private discrimination would be seen (by the general public) as a signal that discrimination is more acceptable both in private and in public policy. At the same time, the people you are most trying to appease with such a policy are likely to not stop at private discrimination anyway.

Conclusion

Discrimination is hurtful, both directly when it’s done, and indirectly because of the fear and inefficiency it creates in society. However, freedom of association and exclusion are important values. Libertarian-leaning people (including myself) think that under most circumstances, private discrimination should remain legal. There may be exceptional circumstances where the harm from discrimination is severe enough to infringe on people’s freedom of association and exclusion. Some people sympathetic to the overall libertarian argument have argued that the post-1964 Jim Crow South presented such an exceptional circumstance, but the present day is not similarly exceptional, so legalizing private discrimination in the modern era is okay.

From a libertarian philosophical perspective, that I largely endorse, repealing some anti-discrimination laws make the case for open borders stronger, insofar as open borders will mean dealing more with a wider range of people. However, as a practical matter, I don’t think it makes sense to try to push for a deal packaging open borders with such repeal. If such a deal emerged as the most feasible way to push for more liberal migration, it might be worth supporting.

Related reading

These links are offered in addition to the numerous inline links in the post.

Rand Paul, Hans Hermann Hoppe, and Immigration Policy

This post is the first part of a new series of posts dealing with the upcoming U.S. Presidential Election.


 

Rand Paul officially announced his candidacy for the 2016 U.S. Presidential election on April 7th, 2015. Unofficially Rand Paul has been preparing to run for the Presidency ever since he first came onto the spotlight as an electable messenger of his father’s, Ron Paul’s, libertarian ideals. There has been much discussion in the libertarian movement whether Rand Paul is a ‘true’ libertarian or if he is a ‘beltarian’ more concerned with getting elected to the White House. Those who argue the latter point out that he diverges from his father on several policy issues.

One issue in which both father and son remain near identical in is in immigration. Unfortunately immigration is one of the few policy areas where Ron Paul is at odds with libertarian principles. To his credit Ron Paul isn’t in favor of building a fence across the Mexican-US border, but his opposition to such a fence is that it could be used to restrict the freedom of travel of US citizens.  Rand Paul in turn might be against open borders, but focuses his attacks using second-order arguments (e.g. Migrants increase the welfare state).

To understand why Ron Paul, and ultimately his son Rand Paul, are not proponents of open borders we must discuss the wider libertarian movement.

Libertarianism has historically been sympathetic to, if not necessarily open borders, minimal immigration restrictions. This is of no surprise given that most founders of the modern libertarian movement were migrants fleeing tyranny in Europe. Ludwig von Mises and Friedrich Hayek were both Austrian migrants. The infamous Ayn Rand, for whom Rand Paul is not named after, was a Russian migrant. Ayn Rand was also the libertarian movement’s best known illegal alien and one of its strongest proponents of open borders.

It was a strange incident then when a faction of libertarian intellectuals came out in favor of migration restrictions in the late 20th century. Hans-Hermann Hoppe, a German migrant himself, convinced Murray Rothbard on the legitimacy of migration restrictions. Hoppe, who remains one of the few major libertarian intellectuals in favor of migration restrictions, argued that open borders were tantamount to forced integration. Hoppe often points out that in an anarcho-capitalist society home owners would be free to refuse to associate with whomever they please and that open borders would violate them of this right. As my co-blogger, Nathan Smith, often points out though it is possible for open borders to exist with private discrimination and thus Hoppe’s argument do not serve as a case for migration restrictions.

Hans Hermann Hoppe did not manage to win the debate on migration and the libertarian movement remains largely sympathetic to open borders, but he nonetheless managed to convince some libertarians, most importantly the Lew Rockwell – Murray Rothbard circle. This circle included Ron Paul who was a friend of Murray Rothbard. Ron Paul in turn influenced his son’s political views. In short Hans Hermann Hoppe’s views on migration have culminated in Rand Paul having negative views towards open borders. One wonders how things might turned up if Walter Block, also a member of the Rothbard-Rockwell circle, had dominated discussions on immigration instead of Hans Hermann Hoppe!

There are those in the libertarian movement who believe that Rand Paul is not as much of an immigration hawk as I have outlined above. To be fair, Rand is not as hostile to open borders as Hans Hermann Hoppe himself but he is no friend to open borders. During the 2013 debate on Comprehensive Immigration Reform (CIR) Rand voted against the passage of the bill. He voted against CIR arguing that it did not grant enough congressional oversight to ensure that the border was secured. The problem with this argument is that immigration creates constant political gridlock and that by increasing the role of Congress it would become increasingly unlikely that immigration liberalization would ever take place. It is difficult enough to get Congress to address immigration once every few decades; the last major overhaul was in the 80s. It is unthinkable to imagine Congress repeatedly addressing immigration as Rand desires. It is partly due to these political difficulties in immigration policy that federalizing immigration policy is an attractive option.

Rand Paul, who is often seen as being more politically savy than his father, surely understands this. If so, why does he insist on a poison pill that would kill any meaningful immigration reform?

As a recent interview with Rand Paul by Andy Hallman showcased, Rand is willing to make the Friedman argument that open borders are incompatible with the welfare state. However Friedman’s argument wasn’t against open borders; Friedman’s argument was that as long as we had a welfare state it would be preferable to promote illegal immigration.

By no means should this post be taken to mean that Rand Paul should not be supported by libertarians in the upcoming 2016 U.S. Presidential Election. Immigration, while important, is not the sole policy issue of relevance.



Further reading:

Andy Hallman | Interview with Rand Paul on Immigration

Nathan Smith v. Hans Hermann Hoppe

Nathan Smith | Private Discrimination is Morally Fine & Should Be Legal

Vipul Naik | Open borders and the libertarian priority list (part 1)

Vipul Naik | Open borders and the libertarian priority list (part 2)

Hans Hermann Hoppe | On Immigration & Forced Integration (offsite link)

Murray Rothard | Nations by Consent (offsite link)

Walter Block | Hoppe, Kinsella, and Rothbard on Immigration, A Critique (offsite link)

Open Borders: The Case | Anarcho-Capitalist Counterfactual 

 

Rand Paul on immigration

On May 16, 2015, I had the opportunity to interview presidential candidate Rand Paul, a Republican senator from Kentucky. Another reporter and I had about 12 minutes to ask him questions before he gave a speech in Central Park in Fairfield, Iowa.

 

The short version of our exchange is this: I asked Paul how, since coercion is normally wrong, immigration restrictions are justified. He responded by saying they were necessary to keep the welfare state from exploding in size. I asked him why the government could not exempt immigrants from welfare if that was the case. He seemed open to the idea of unlimited immigration provided the immigrants came to work and not go on welfare, and suggested cutting welfare and opening the borders in the same stroke is not so easy.

 

What you see below is a partial transcript of our interview. I have included just the portion that relates to immigration. The full transcript can be found on my blog here.

 

Andy Hallman: [Let me] move on to another issue, but it’s along that same line about your general philosophy of government, and that is immigration restrictions. Immigration is in the news a lot. Immigration restrictions seem like an act of coercion, an act of aggression, preventing someone from moving where they want to, taking a job where they want to. So it seems like, on the surface, that is wrong. Why do you think immigration restrictions are justified?

 

Rand Paul: Milton Friedman also had something good to say on this. He said basically you can’t have open borders and a welfare state. So the problem is … we’ve agreed to have some coercion and compulsion in our government. In our system, it’s much greater than I would have, so half of my income is taken from me and given to government. If we say we’re going to have an open border in that system, then it would be 75 percent or maybe 100 percent of my income that goes to other people through a form of compulsion. There was a PEW study that added up data from a lot of different countries, and asked them, if you could, would you go to the United States? 600 million would come. We’re a country of 300 million, it would be a bit disruptive to have 600 million people show up, so it has to be an orderly process, and there is now a great religious sort of struggle and war going on [and people] who for many different reasons, don’t like Americans and would come and kill us, so you have to know they’re coming across the border to try to stop them.

 

Hallman: Although, screening those out wouldn’t justify the kind of quotas that the government has instituted. To talk about what you just said about welfare, it’s true that welfare is an act of coercion, but I would think immigration controls may be a more grievous kind of coercion. You’re preventing someone from improving their life, perhaps by an order of magnitude in their earnings, if we talk about someone in Haiti or India.

 

Paul: If it were only border controls that had to do with people coming to work, I’m for as many people coming to work who want to. I’m for an expansive work visa program where we don’t mind people coming to work. The problem is, as Milton Friedman described it, is that we have an enormous welfare apparatus. Not everybody comes to work. Some people come to receive. If 60 million people come here [perhaps he meant 600 million, the figure he stated earlier], it would overwhelm us.

 

Hallman: It sounds like the solution and the just thing to do is to eliminate the welfare state and to eliminate the quota system. Would you be in favor of that, those two measures side-by-side?

 

Paul: We rarely get decisions like that. We get decisions on, “Do you want to improve the immigration system?” I think the immigration system is broken for a lot of reasons. We have 11 million people here who came in here and explicitly broke our laws to get here. So we do have to figure out something to do or 11 million more will come, so that means the immigration system writ large needs to be reformed and fixed.

 

Public domain (US government work). Source http://commons.wikimedia.org/wiki/File:Rand_Paul,_official_portrait,_112th_Congress_alternate.jpg
Public domain (US government work). Source http://commons.wikimedia.org/wiki/File:Rand_Paul,_official_portrait,_112th_Congress_alternate.jpg

COMMENTARY

 

One thing we learn from the interview is that Milton Friedman is a major influence on Paul’s views. I am heartened to hear that. It is important to keep in mind that Friedman was against the welfare state, not immigration. In fact, he was fully supportive of immigration as long as it was illegal:

Milton Friedman: Look, for example, at the obvious, immediate, practical example of illegal Mexican immigration. Now, that Mexican immigration, over the border, is a good thing. It’s a good thing for the illegal immigrants. It’s a good thing for the United States. It’s a good thing for the citizens of the country. But, it’s only good so long as it’s illegal.

 

Friedman’s views aside, those who make the welfare objection to free legal immigration must answer two questions: 1) Given there is some tension between the size of the welfare state and free immigration, which is worse? Welfare or immigration restrictions? and 2) Is there some way to mitigate the effects of immigration on the welfare state that do not involve outright prohibition of immigration?

 

To question #1, it does not at all seem obvious to me that the tension between welfare and immigration implies immigration restrictions any more than it implies living with both open borders and a larger welfare state. As I point out to Paul, welfare is coercive just as immigration restrictions are coercive, so we must weigh the wrongness of each act of coercion.

 

When we compare the scope of coercion from the two acts, the contest is not close. The welfare state prevents some people from buying things they could have bought if not for the taxes they had to pay, and that is wrong. Bryan Caplan and Scott Beaulier make a persuasive argument the welfare state even hurts recipients by amplifying the negative effects of their self-control problems.

 

But there are many things the welfare state does not do. It does not dictate where people can and can’t live, where they can work and for how long, and it does not tell people whom they can marry. Immigration restrictions do all of that.

 

While the welfare state’s track record on helping the poor is a matter of debate, there can be little doubt that immigration restrictions condemn millions of people to a life of poverty. To take one of the most extreme examples, the average Haitian experiences a seven-fold increase in wages upon immigrating to the United States. By denying Haitians and others the right to immigrate, we aren’t just refusing to help them out of the poverty trap, we’re kicking away the ladder. My contention that some immigrants could see their earnings rise by “an order of magnitude” is an exaggeration for the average immigrant now under mostly closed borders but is not much of an exaggeration for the most destitute immigrants from the Third World.

 

I do not know where Paul got the idea his taxes would rise to 75 or 100 percent under open borders, but that is an unlikely scenario given what we know about the public’s willingness to fund welfare programs. If 600 million people immigrated to the United States, we would more likely see a drastic reduction of benefits than we would see a drastic increase in taxes because taxpayers do not like paying for people who are not like them.

 

I was glad to hear Paul say he was in favor of unlimited immigration for people who want to work. Since he is clearly worried about the size of the welfare state, I was disappointed he had not thought of keyhole solutions to allow free migration while cutting immigrants off welfare. We know this is politically feasible because the federal government has already done it. It did it two decades ago with the welfare reform act of 1996, which prevented legal immigrants from accessing many government benefits.

 

The welfare objection to immigration is the easiest for open borders enthusiasts to accommodate since we know it can be done, so while I was disappointed in Paul’s treatment of the issue, I sensed that he could be converted to the open borders position with a little persuasion and perhaps a keyhole solution or two.

Related reading

The links below were added by the Open Borders: The Case editorial staff and not picked by the author.

Other related links on Rand Paul’s views on immigration policy:

Barry York’s case for amnesty for asylum seekers in Australia

Barry York resides and works in Canberra, Australia. He is a former Research Officer with the Australian Parliamentary Library, where he was on the immigration and refugee desk. Below is York’s blog post A case for an amnesty for asylum seekers in Australia, republished with his permission, along with some commentary and additional links. The post was originally published on C21st Left, York’s blog.

Amnesties occur when a government grants a pardon to a group of individuals. It can apply to prisoners, or people in other forms of detention. Or even people not in prison or detention. An amnesty for asylum seekers would be a pathway to permanent residence.

Some historical background

Australia’s experience of amnesties in the immigration field date back to Australia Day (26 January) 1976 when Prime Minister Malcolm Fraser granted amnesty to illegal immigrants. At that time, this meant individuals who had entered Australia lawfully but overstayed their visas. The period in which applications could be made for amnesty expired on 30 April that year. It was an offer too good to refuse.

The Coalition government realized that these ‘illegals’ were in the country anyway. They were part of Australian society, despite their official status, and working or bludging, or having fun, playing music, fishing, reading, chatting with neighbours, going to the pub, etc, like the rest of us. And, again like the rest of us, they had a future here. Fraser’s standing in immigration history is being rewritten and mythologized by all-too-eager academics who seem to have put aside any semblance of critical approach.

Fraser was responsible for formalising the distinction between genuine and non-genuine refugees through the establishment of the Determination of Refugee Status Committee in 1978; a decision that laid the basis for all the subsequent problems arising from exclusion.

When it came to the ‘Australia Day’ amnesty of 1976, Fraser gave with one hand while taking with the other. He also funded a special unit to hunt them down. A cost-benefit analysis may have found that the benefits outweighed the costs in letting them stay. Not that that is the only – or main – point. But what is important to note is that the amnesty did not alter the basic policy: over-stayers after 30 April 1976 were in big trouble if caught.

Australia’s next experience of amnesty occurred during the Hawke years when, in 1989, Prime Minister Bob Hawke announced that the thousands of Chinese students studying in Australia would be permitted to remain here until 31 July 1990 on a temporary basis. This was later extended to June 1994 and then, as was the intention all along, 42,000 were allowed to apply for permanent residence. Again, it was an offer too good to refuse. Who in their right mind, after the Tiananmen massacre, would want to return to live under a social-fascist regime compared to life in bourgeois-democratic Australia?

The situation today: about 30,000 in limbo and detention

Currently, in Australia, living as part of our community and society but separated from it by various restrictions imposed by a ‘bridging visa’ system, there are more than 27,000 people, mostly asylum seekers waiting to have their cases determined. Most have been waiting for a long time. There are also 2,500 in detention centres.

It’s always helpful to look on the bright side in any bad situation. There are about ten thousand fewer in detention today than there were under Gillard’s Labor government. When it comes to detention of asylum seekers, Labor holds the record. (Lest we forget).

It is curious, to me, that pro-refugee groups tend to advocate the more rapid processing of these asylum seekers’ claims, as though it is fair enough to identify those who are not genuine refugees, rather than questioning the system itself. Sadly, this is the main paradigm in public discourse. Nearly everyone, the Greens included, think it’s fair enough to keep out asylum seekers who are not genuine refugees. So, a family might sell everything in, say, Iran, risk their lives by escaping, lose nearly everything to unscrupulous people-smugglers (note: these guys are not to be romanticized) and then having made it across the dangerous, often deadly, waters, under the old ‘Fraser system’ they could be be rejected because they are found to be ‘economic’ refugees not the ‘political’ type. Needless to say, within this paradigm, they have to leave the country, which they will not do voluntarily. They therefore (the dominant thinking goes) need to be detained in some way, lest they abscond into the community. The Greens want this process to be accomplished quickly, more efficiently and ‘nicely’; Labor and the Coalition are rather less polite about it, though at each election since 1996, Shadow Ministers for Immigration have promised to ‘speed up’ the determination process.

Those who were denied permanent residency because they were found to be economic refugees made the journey in order to have a better life – and, after such a journey you can be sure that means they will want to improve things generally. My parents paid ten pound each to get here in 1954, and were allowed in. Their motivation was a better life for themselves but mostly for my future. Both my parents made special contributions to their community (in Brunswick, Melbourne) and in other ways. Had they not been ‘authorised’ migrants but rather ‘economic refugees’, and allowed in, their contributions would have not been diminished in any way.

There are financial and human costs involved in maintaining these 30,000 people in their current state. Most of the costs are borne by government – you and me. We are denying each of them the opportunity to be productive and useful members of society, as a result of restrictions placed on them through the bridging visas. As I say to my wife: That asylum seeker lighting a fire and jumping up and down on top of the detention centre’s roof may be our next dentist! So, in addition to the cost of keeping 2,500 people in detention, and in addition to the cost of ensuring the other 27,000 don’t abscond, why not advocate something that makes much more sense than wanting nicer, more efficient, ways of keeping people out? Why not allow them the opportunity to contribute to the community and society without the restrictions of the bridging visas by letting them in?

In other words: let’s call for an amnesty for them all.

Given the current parliamentary political situation in Australia, the demand could reap some benefits. After all, isn’t the ALP keen to recapture votes it has lost to the Greens on this issue? Aren’t the Greens out to convince us that they represent a humanitarian alternative on the refugee issue? Wouldn’t Labor and the Greens have the numbers in this fine humanitarian and entirely practicable act? And 30,000 is not a big number. For heaven’s sake, 30,000 is about a third of the net loss Australia experienced through permanent departures last year. And last year we took in 200,000 newcomers.

Above all, from the viewpoint of the prevailing consensus, the actual refugee policy would not have to change. Much as I think it should, and must – and will (one day). An amnesty can be granted as an act of compassion, without any need to change current refugee policy.

‘Christian compassion’ for Australia Day next year.

Let’s call it… er… well… “Christian compassion”. Yes, Christian compassion for ‘Australia Day’ 2016. Marking the 40th anniversary of the first amnesty granted by a Coalition government in Australia.

Tony: ya there?

Bill?

Richard?

Related reading

Some related reading suggested by the author:

The remainder of the related reading section has been added by the Open Borders: The Case editorial team and has not been vetted by York, the author of the original post.

On migration to Australia:

On refugees:

On moderate immigration reform groups and the differences with those who support radical migration liberalization:

And another miscellaneous article: An Apology, Not a Fine by Joel Newman, Open Borders: The Case, February 24, 2013.

The painting featured at the top of this post is “The Immigrants’ Ship,” by John C. Dollman, and is on display at the Art Gallery of South Australia.

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.