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The Ethics of Illegal Migration

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Is it morally wrong, or morally permissible, to migrate to a country illegally?

The question matters, to those who have done it, to those who feel indignation at others who have done it, to those who profit by the labor of those who have done it, to the friends and neighbors and children of those who have done it, to those who are considering doing it, and to policymakers who must decide how to deal with those who have done it or may be tempted to do it in future. But above all, it matters to those who are faced with the choice: should I migrate illegally to a foreign country or not?

To be faced with this as a live option at all, a person must be in a position such that they want to migrate illegally. That is, considering all other factors, migrating illegally must seem to them better than their other options. In particular, (a) they think either they would be better off living in another country, even illegally with all the risks and inconveniences that entails, or that they can benefit others they care about by doing so, or both; and (b) they either cannot get permission to do so from the government of that country, or can do so only excessive cost and inconvenience. Usually, though, illegal migrants seem to be people who had no realistic option of migrating legally, even at great cost and inconvenience.

The question at hand is: If a person wants to migrate illegally (in the sense specified), should they not do so for specifically moralreasons? Presumably the answer is not an unqualified yes or no, since one can invent extraordinary cases in which the act of illegal migration is clearly morally right or morally wrong.  If a migrant’s goal is to commit a terrorist attack, or steal, or abandon a wife and family, or escape justice after committing a heinous crime, or avoid paying burdensome but quite affordable debts, then he is clearly in the wrong. If a migrant is being hotly pursued by a gang of killers and crosses an international frontier in a desperate effort to save his life, or if he has secret information about an imminent terrorist attack which, if he can only arrive at the spot in time, he can prevent, saving millions of lives, there can be little doubt that the act of illegal migration is justified. The real question is how much, and what kind, of moral weight the law has in determining whether particular acts of migration are right or wrong.

There seems to be a widespread feeling that, except in strange and extreme cases, it is simply wrong to disobey the law per se, as if anything “the government” (whatever that means) forbids (requires) magically becomes morally impermissible (obligatory) for all of “its” citizens/subjects. I have this feeling myself, but as I can’t justify it directly, I take it that the generalization “it is wrong to disobey the law” holds (usually) true for a variety of often overlapping reasons that, between them, cover most of the cases. Most, but of course, not all. I don’t think anyone really holds that it is always wrong to disobey the law. As a Christian, I am not at liberty to hold that view, since the prophet Daniel and many other Biblical heroes violated human laws that were contrary to the laws of God, and many, many Christian saints were martyred for refusing to obey the law by worshipping the Roman emperors.

Recently, I was discussing the duty of obeying the law with my father, a law professor, and he seemed to recall that in the past I had expressed strong scruples about disobeying the law as such. I told him, that had never been my position, and that my most general reason for obeying the law is to avoid the temptation to lie to escape detection. But afterwards, I wondered whether I really had held the position he remembered, and if so, what arguments I had for it, that I might have forgotten. In a way, I would like to hold that position, since my complex of arguments for obeying the law seems to differ a bit from the historic position of most Christian churches, as far as I am able to discern it. I have the sense that they felt obeying the law was wrong as such, except when conscience forbade it, as in the case of the prophet Daniel or the Christian martyrs, rather than that it is usually wrong for a variety of indirect reasons. But I can’t see a way of justifying the attitude that seems most typical of Christians in the past. Not that this threatens any crisis of faith. The best arguments I can offer get me close enough for comfort to what is in any case only a rather imprecise perception of what most of my fellow Christians have thought. But if I did at some point find reasons for advocating a more robust and inherent duty to obey the law, I’d be interested in what they were. Anyway, here’s what I have to offer right now.

One reason to obey human laws is that they may coincide with natural laws. Thus, one should not murder, regardless of whether the law forbids murder or not. But as human laws do seem invariably to prohibit murder, we assimilate our condemnation of murder into a general condemnation of “breaking the law.” Likewise, one should not steal, whether the laws protect property or not, but human laws reinforce this duty. However, while killing is an objective fact quite independent of any government definitions or decisions about it, I don’t think government can be made irrelevant to the business of defining property rights. Some property rights really are simply natural rights. If a man settles on wild land to which no one had a previous claim, and cultivates it to feed his family, his property rights to that land are natural in a simple and readily perceivable sense. (This insight is associated most famously with John Locke.) But in complex commercial societies, it is not practical to establish consensus about property right by tracing all of them to such elemental origins, and courts and laws and judges are indispensable aids in defining and agreeing upon who owns what. Still, the duty not to steal is part of natural law and would apply even in the absence of government, and the reason to respect property rights remains fundamental and pre-political even when political actors have helped to adjudicate who owns what.

A second, related reason to obey the law is that it serves as evidence of what the natural law is. Suppose that action A does not seem to me to violate the natural law, but the government of the country I live in has prohibited action A. Suppose further that I view the government of my country as generally just and reasonable. I may then judge that, if judges and legislators have seen fit to make action A illegal, they probably have some good reason for thinking action A is a violation of natural law, which I happen not to have understood. I should try to understand it, but meanwhile, I should obey the law, to reduce the risk of doing something wrong. Of course, this argument only applies inasmuch as the government is generally just and reasonable. If I live under a crazy, arbitrary, absolutist king or dictator, and the laws reflect his mere random whims, the law of the land ceases to be evidence about the content of natural law, and this reason for obeying it disappears.

Modern democracy presents an interesting case here, because modern democracies typically claim to be enforcing, not the natural law, but the “will of the people,” whose “sovereignty” consists in being able to make whatever laws they like. That I have moral reasons to obey the natural law is a tautology, since by the natural law I mean the moral law. But the “will of the people,” even if the concept itself were not naïve, has no power morally to command. A man ought to do what is right, not what his fellows approve of, unless he is fortunate enough that his fellow men are wise enough to want him to do what is right. We might conclude, then, that since under modern democracy, public officials do not even claim to govern according to natural law, no one should regard their judgments as evidence about right and wrong. But I would be inclined to give democratic laws more credit than this, because I don’t think democratic publics are so corrupt as to feel they have an arbitrary, “sovereign” right to make any laws they like. I think they know there are such things as unjust laws, and that democratic majorities have a duty not to make them. I also think that democratic majorities are reasonably good judges of what laws are just, reasonable, and appropriate, when they themselves are burdened with obeying those laws. The horror stories about the political ignorance of ordinary people miss an important point, namely, that the rule of “rational ignorance” about politics ceases to apply when a person is faced with the duty of complying with the law. Then they have an incentive to understand it, and think about it, and that makes them informed voters. But that qualification shows why the “wisdom of crowds” principle has no force when it comes to immigration laws. Voters are citizens and therefore they are not prospective immigrants, so they have little incentive or opportunity to see the law from a prospective immigrant’s point of view, in order to judge its reasonableness or lack thereof. And that is why democracies’ policies on immigration, ever since they got into their heads the baneful error that restricting it is okay, have always been wildly unreasonable.

A third reason one should obey man-made laws is because the government serves as a focal point for setting expectations, and thereby solving coordination problems. Thus, natural law has nothing to say about whether societies should make people drive on the right or the left side of the road, but it does say that whatever side others are driving on, one should do the same, for one ought not to needlessly jeopardize one’s own life or those of others. Society might be able to solve this problem in a decentralized fashion if it needed to, but surely if there is a government, there should be no objection to its taking the lead here.

The argument that one ought to obey the law because the law is serving the common good by solving a coordination problem is clearly valid here, but are there a significant number of similar cases? Daylight savings might be another example, except that it seems to have hardly any moral relevance. Money, I think, is another example. I think it is wrong to counterfeit money, though of course in a Lockean state of nature there would be no objection to making pieces of paper of a certain description, because (a) it is against the law, and (b) in this case the law is solving a coordination problem for the common good. Even some quite arbitrary and micromanaging regulations could be defended as solutions to coordination problems. For example, suppose the law regulates the size of oranges that can be sold in grocery stores. Natural law has nothing against selling very small oranges per se, but if the law has created a general expectation that oranges must be a certain size, then by selling smaller ones, I might mislead customers. But, you say, customers can see the size of oranges they are buying! All right, but what if someone is selling batteries with very little power, or appliances that emit fumes harmful to health, or building houses that have an unusually high risk of fire of collapse? Granted, some people might recognize the inferiority of these products and still buy them, but should societies not be able to opt out of at least some of the inconveniences of caveat emptor? While I would hesitate to affirm that such regulations can justify the use of coercion, certainly I think one moral reason to obey the law is that government is solving coordination problems for the common good, and you should help it to do so by following the rules.

A fourth reason to obey the law would be that one has agreed to do so through a social contract. If valid, this argument has great generality, but it depends on the social contract having some kind of reality. And it takes a heroic effort to maintain that the social contract has any reality in the face of the obvious fact that we never actually sign one. Yet I do tend to make somewhat reluctant and embarrassed attempts to argue this, because I think we need at least some legitimate government (albeit we could do just find with a good deal less of it than we have), and the social contract is the governed countries, do in fact morally will for there to be a government rather like the one they have. Even if their permission is never asked, they do give their permission through their intentions and attitudes and desires and states of mind. And the manner in which they occasionally ask for its assistance carries a sense of entitlement that reflects their real sense of duty to, and their intention to, uphold their end of the bargain. I might try to argue that many gratified Constitution, but some others too, have a historic warrant from some sort of old social contract. I would then try to argue that such commitments can be presumptively passed on from generation to generation, unless explicitly and conscientiously repudiated, since we owe so much to our parents and may be regarded as having a duty, in return, to uphold the commitments that they regarded as valuable and important, inasmuch as conscience permits us to do so. Probably the sum total of these arguments would still be a bit lame, but they might have a little bit of force, and what force they have favors obeying the law.

A fifth reason to obey the law is that to break the law may involve lying, or an intention or temptation to lie under certain circumstances. The penalties governments impose on lawbreakers are usually sufficient to make lawbreaking a bad plan, except for those who expect to escape detection. Detecting lawbreakers would be easy if everyone always told the whole truth. The government would only have to ask you whether you did it. Of course, there is a difference between telling the whole truth and not lying. It is not lying to refuse to answer an unwelcome question. Often, a lawbreaker is never asked whether he broke the law or not, so he does not have to lie, or even to refuse to answer. But he certainly might be asked, and he deserves little credit for not lying if he intended to do so at need, but simply never found it necessary. There is a danger, too, that without directly lying, one might deceive by allowing falsehoods to be assumed true. Depending on the circumstances, this might be almost as culpable as a direct lie. All this lends to lawbreaking a strong aura of dishonesty, and one’s duty to the truth is a strong reason to obey the law.

Civil disobedience stands out as a case where, far from being dishonest, breaking the law is uniquely and specially truthful. The whole point of civil disobedience is that one does not try to escape detection and punishment. On the contrary, civil disobedience tends to be deliberately public, and one submits willingly to whatever punishments the oppressor chooses to perpetrate, hoping that the moral burden of administering unjust punishments will break the oppressor’s will and cause him to repent. I don’t think civil disobedience has to be deliberately public, but I do think it has to be resolutely honest. One can be civilly disobedient without actually courting arrest, or advertising one’s lawbreaking. But one has to speak about it openly, and avoid any deceit.

A sixth reason to obey the law is simply that you should presumptively comply with any request that anyone makes of you, including if that anyone is a government. Of course, this presumption isn’t a very strong reason for action. If someone asks you to, say, give them a ride to work, you probably should if it’s no great inconvenience, but it doesn’t take much to override that. It may be no great sin to refuse even if your only reason is that you’re very tired, or your favorite TV show is about to come on. Still, one reason to pay taxes (for example) is just that the government says it needs the money, and it’s usually good to be obliging when someone requests something of you.

Now, how do all these reasons for obeying the law affect the ethics of undocumented immigration?

One reason that I’m unusually lenient in my attitudes towards migrating illegally is that I put a lot of weight on the social contract as a reason for obeying the law, and this argument doesn’t apply to foreigners. If it’s difficult to defend the claim that an American should obey US laws because they’re part of a social contract, to say that a foreigner should obey US laws because of a social contract is an obvious non-starter.

To save space, I’ll dismiss the first two arguments by saying that migrating illegally is not against the natural law, and that the judgments of democratic legislators on this point are of negligible value, because they are serving voters who are not subject to the immigration laws they vote for through their representatives. Of course, there’s more to be said, and I even think some vague and highly attenuated version of the “collective property rights” might have a little force, such that migrants might act unjustly if, after migrating, they made no effort to assimilate and effectively appropriated large and important parts of a nation’s territory in such a way that natives no longer felt safe and at home there. A weak duty to assimilate might also arise out of the coordination problems that occur when, say, ignorance of English becomes widespread. All such arguments seem hardly worthy of being put in the scales against the desperate economic needs of migrants who need to feed their families or earn the money to pay for essential medical care, but they may have a (very) little force.

The sixth argument, the argument that one ought presumptively to comply with any request, is obviously weak, but if it were really the case that no one in a country wanted you there, that might be a pretty good moral reason not to go. In practice, though, the people most directly concerned with an immigrant’s decision usually want him to immigrate. Thus, Mexican migrant workers are declared illegal by the government, but welcomed by the growers, and probably by landlords, grocers, and churches as well. So I don’t think the sixth reason to obey the law has any force in most cases.

By far the strongest reason not to migrate illegally comes from the duty not to lie. To that, I’ll return. But first, let me say that there do seem to be a few weak reasons why a migrant should obey the laws of a country he wants to migrate to, and if there is not at least something to put in the moral scales against them, I would hesitate to condone an act of illegal migration. Suppose, for example, that an affluent Bostonian has a perfectly satisfactory life in the US, but has a fancy to live in Toronto. Canada won’t give him a work visa, but he still wants to go, so he moves to Toronto and works on the black market. I can’t find it in myself to judge this hypothetical person. I rather like his spirit of adventure. But I probably would advise a person against taking the moral risk of breaking the law for so casual and non-compelling reason.

In more typical cases, illegal migration is motivated by real economic desperation. No jobs at home. A family to feed. Maybe fear of religious persecution, or gang warfare. Scanty earnings are channeled into remittances. Or parents make huge sacrifices, living in the shadows for decades, so that their children may have a better life. All such morally serious reasons for illegally migrating easily override the weak arguments against it, except for the argument from truth, to which we now turn.

If we accept the absolute duty never to lie (admittedly a controversial claim), does that rule out illegal migration? Is it possible for an illegal immigrant to live in truth? Can one navigate modern life in America, or Europe, or elsewhere, without legal status, and without lying?

It seems to me that it would be almost impossible to be an illegal immigrant without using falsehoods in various formal and bureaucratic contexts. For example, one might get work, or a driver’s license, using a fake Social Security card. The question is whether there is such a thing as a morally permissible legal fictionwhich can be used without lying. I hope there is, because I often use legal fictions myself. Case in point: If one engages in online commerce, one will often have to click boxes saying “I have read the terms and conditions,” in order to complete a transaction. In these cases, I usually don’t even click the hyperlink to glance at the terms and conditions. If I do, I never read them thoroughly. I don’t think I would be capable of doing so, written as they are in mind-numbing legalese. Boredom would overwhelm my powers of attention long before I got to the end of them. So, if lying to a form counts as lying, then I tell lies all the time. Is that a sin? Should I shun online commerce, on pain of being a liar?

I don’t think so. It would probably be a better world if our understandings of consent were modified such that the types of contracts we recognize as valid were calibrated to what people could reasonably be expected to understand. But our current institutions routinely make use of “I have read the terms and agreements” as a legal fiction, and we do not really expect people to do so. By the same token, it is well-known that fake Social Security cards are widely used in the economy, and I think there are some industries in which employers routinely accept fake Social Security cards. They may prefer not to be made explicitly aware that a given employee is illegal, to avoid culpability, but they would not be surprised to discover it, or consider themselves deceived. In these contexts, to present a Social Security card is not to assert, “I am such-and-such a person,” but simply to give an employer a means to clear a bureaucratic hurdle. It therefore does not qualify as lying, and is not inconsistent with the duty of living in truth. Of course, the bureaucrats to whom the Social Security number will be reported, and the politicians and voters who stand behind them, really do want to know the truth. But they are not morally present in the situation, because they are not available to be reasoned with. To have the right to be told the truth to, one must be available to listen to the whole truth. In the same way, if I were face-to-face with a representative of the companies I engage in online commerce with, I would say, “I can’t really read this agreement, you know. It’s exorbitantly long and I’m not a lawyer.” But a form is not a human being and doesn’t have the same right to be told the truth. The people behind the forms forfeit the right to be told the truth if they demand information in unreasonable ways, and are not available in person to be held accountable for their unreasonableness.

Even if it is sometimes morally permissible to use fake Social Security cards, the duty of telling the truth will doubtless involve extra risk and sacrifice for those who migrate illegally, over and above what they would face by being here without any scruples about lying. There may be jobs a person cannot conscientiously take, because conventions have not given the presentation of a Social Security card the nature of a legal fiction. One might have to tell such employers the card was fake, to avoid really deceiving the employer. Social relations might also involve special dangers. You never know who might be a tattle tale, but again, you can’t lie.

So, to someone who was considering migrating illegally, but was not sure whether this was a morally acceptable thing to do, I would advise them to examine themselves and make sure that they were really determined not to tell any lies in the process, with the tricky but important exception of legal fictions. I would advise them to think of themselves as engaged in conscientious civil disobedience, and to err on the side of telling more of the truth than honesty demands. I would ask them if they had the courage to tell the truth at great personal risk, and the magnanimity to face the injustices of the system, should they be arrested and deported, without rancor or bitterness, and in a spirit of love and forgiveness. If not, I would advise them not to migrate illegally.

Another Take on Moderate Vs. Radical Approaches to Immigration Policy

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The mainstream debate in the United State over immigration policy focuses on whether there should be “immigration reform” or not, with reform being generally synonymous with the immigration bill passed by the U.S. Senate last year and endorsed by President Obama.  The bill would raise legal immigration levels by 50 to 70 percent within five years and legalize the millions of undocumented individuals already in the U.S., while also spending more money on tightening control of the southern border.

Earlier this year, John examined the similarities and differences between those backing “immigration reform” (“moderate reformers”) and those promoting open borders.  He noted that both groups share the beliefs that immigration can be beneficial economically and socially to a receiving country and that immigration enforcement is often inhumane.  Yet, as John points out, moderate reformers “shrink from any inexorable conclusion, no matter how firmly the evidence may point towards it, that open borders could possibly be the right thing to do.”

I recognize that the perfect can be the enemy of the good and have written how moderate reforms can benefit some immigrants, and Vipul has pondered whether the work of the moderate reformers may be more valuable than that of open borders advocates. Nonetheless, the moderate reformers’ intransigence in their thinking about open borders is vexing.

So it is satisfying when the reform camp is challenged in the mainstream media to consider an open borders policy.  Ross Douthat, a New York Times columnist, criticizes reformers with regard to the recent influx of children from Central America.  Mr. Douthat argues that “the mere promise of an amnesty” has been a factor in the migration.  He then presents an open borders solution: “One answer, consistent and sincere, is that the child migration really shows we need an open border — one that does away with the problems of asylum hearings and deportations, eliminates the need for dangerous journeys across deserts and mountains, and just lets the kids’ relatives save up for a plane ticket.  Come one, come all.  But this is not the answer that President Obama or the congressional architects of an immigration bill would offer.  Instead, the official promise is always that we’ll get amnesty and a system of enforcement that will deter and deport and police employers more effectively…”  While I disagree with Mr. Douthat’s position that building “a more effective enforcement system” should be attempted before considering amnesty, I applaud his suggestion that the open borders position on the migration of children and immigration generally makes more sense than that of the reformers.

Similarly, on the PBS Newshour Jan Ting of Temple University, a foe of increased immigration levels, has pushed reformers to clarify their thinking: “… I think we have to answer the fundamental question: Do we want unlimited immigration to the U.S. or not?… I actually think a rational, coherent argument can be made for completely open borders… we have just got to make up our minds.  Is illegal immigration a problem, yes or no?  If it’s not a problem, let’s let everybody in.”

In the long run, it will be beneficial to the open borders cause for the moderate reformers to embrace open borders and join us in pushing for its realization.  At the same time, perhaps in the short run it might be beneficial to have both groups, with moderate reformers achieving some gains for immigrants while open borders advocates begin pushing for larger gains in the more distant future.  Open borders advocates also can lay the groundwork for moderate reformers to join our cause by continuing to point out the flaws in their thinking, as John has done.  Opponents of both reform and open borders, like Mr. Douthat and Mr. Ting, are welcome to help out in this effort.

The inconsistent social engineers: why do we have border controls, but no birth controls?

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I’m not sure who first observed this, but a lot of arguments against allowing people to move freely are based on a set of premises that boil down to: “People are bad. Immigration brings more people ‘here’. Therefore free immigration is bad.” In March this year, British comedian Stewart Lee did a fantastic monologue about this, stepping back through the history of the British Isles and denouncing various peoples who’ve settled the land along the way. After going through the Romanians, the Poles, the Huguenots, the Saxons, and so on, he finally got to the evolution of land-based animals: “They crawled out of the sea onto the land — OUR LAND!” Lee wound up his misanthropic speech with a thunderous denunciation of the Big Bang: “Remember the good old days? When you could leave your door unlocked? Because there was nothing there? Nobody ever asked me if I wanted a Big Bang!”

(I’d link to a video or transcript of this great monologue, but the only extant video I could find seems to no longer work, and nobody seems to have thought to transcribe it. The quotes I’ve furnished here are actually from memory and not verbatim.)

The typical objections people have to greater immigration are after all just as applicable to higher birth rates:

  • More people entering the labour market causes a rise in unemployment and lower wages
  • More people by definition means there will be more criminals, since criminals are people
    • And worse still, if lower-socioeconomic status people have higher birth or immigration rates, we would expect overall crime rates to go up disproportionately
  • More people by definition require larger state expenditures, both for the upkeep of public goods and services like roads, and also for benefits programmes
    • And again, if lower-socioeconomic status people have more children or immigrate more, then the economic burden on the state will increase disproportionately
  • More people create adjustment costs — someone, whether it is the public or private sector, will have to build more homes, open more schools, hire more nurses; the list goes on and on

If all these arguments are valid defences for strict border controls, why not have similar ones for birth controls? Would it not be a catastrophic risk to our society if lower-socioeconomic people began giving birth to more and more children? Co-blogger Johnny Roccia has blogged about this, and more recently guest blogger Bryan Caplan blogged about a hypothetical world of eugenics over at EconLog, After all, if you’re happy to advocate arbitrary and broad-reaching state power over people’s ability to move, because of all the attendant ill-effects of, you know, dealing with human beings, why stay silent about reproductive restrictions? Shouldn’t advocates of border controls who complain about population growth leading to more crime, more welfare payments, fewer jobs, and so on, be worried not just about immigrants but also newborns? Economist Daniel Lin makes light of this on his Twitter, but surely he has a point:


Now, there are some extreme environmentalists who advocate immigration restrictions as just one form of population control among many, but they are a fringe minority. Their minority status is thus puzzling: if people truly worry about where jobs will come from, or who will pay for the burgeoning benefits cheque, or how to manage a growing incidence of crime — to cite three of the most common ills associated with immigration, but also with population growth in general — why focus all energy on stopping immigration, and not consider devoting some effort to implementing a government-backed eugenics policy? Why not ban welfare recipients from having children? Why not sterilise all habitual violent criminals? Why not cap the number of “low-skilled” workers allowed to reproduce, lest the number of low-skilled people in the economy outpace its ability to create jobs for them?

Now, some people do bite the bullet and say “Yes, eugenics is a good idea and the government should be doing something there too.” To these people, I don’t have a lot to say; we will probably just have to agree to disagree. I don’t see a compelling reason, except perhaps in extreme scenarios, for the state to regulate human reproduction. I don’t see an existential threat to our societies or the human race posed by our general lack of eugenics programmes.

But most people try to distinguish border controls from birth controls in some way. The argument is that it’s unjust and immoral for the state to restrict births, but it is not similarly unjust or immoral for the state to restrict human movement. People who argue that migration controls and birth controls should not be compared in this manner often take three tacks:

  1. International migration is an uncommon, unnatural desire, while reproduction is not;
  2. Birth rates are generally predictable, while international migration rates are not;
  3. Immigrants originate from different cultures, while natives give birth to and raise children from a common culture.

Even if you take all their premises for granted, all three are essentially arguments for violent and coercive social engineering by the state. The first argument assumes that the state has a right to quash “unnatural desires”, even if no individual can point to a specific wrong that was committed against them in the process of pursuing this “unnatural desire”. The second assumes that what social changes the state can predict and manage are tolerable, while social changes that the state cannot predict and may not be able to manage are intolerable. And of course the third gives the state explicit authority to use force (not just nudges or incentives) to micromanage the cultures of a society, which seems like the epitome of violent social engineering to me.

But even the premises of these arguments are questionable. To the first argument, UN economists already estimate there are about 250 million international migrants in the world, and another 800 million domestic migrants. This is what occurs even under highly restrictive border regimes; if migration policies were liberalised, we would expect the true numbers to be much higher. How many of those domestic migrants would choose to move internationally instead? These numbers exclude temporary migrants too; those people would also benefit significantly from open borders. If hundreds of millions of people want to move, and do move even under highly restrictive border regimes, in what sense is this desire unnatural or uncommon?

And to the second argument, yes, there is a natural, fixed limit to how many children a woman can bear, making childbearing rates somewhat more predictable than migration rates. But migration rates are hardly impossible to manage either; indeed, to a large degree they can be quite predictable. The main constraint hampering a state’s ability to predict free migration flows today is that we haven’t had open borders for so long that it is difficult to tell what migration flows might result. But that’s an argument at best for gradual opening of the borders; it’s not an argument for maintaining arbitrary border controls in perpetuity.

Finally to the third argument, most countries have plenty of heterogeneity even internally. If the state has a legitimate interest in taking coercive action to prevent the current mix of cultures from changing too much, should the state gear up for action if one cultural group’s birth rate falls behind another? Should the state force citizens from regions or ethnic communities with low birth rates to give birth at gunpoint? Should the state forcibly prevent the births of citizens in regions or ethnic communities where the birth rate seems out-of-whack with what the state believes is warranted or manageable? Shouldn’t Americans be concerned about plummeting birth rates in New England, the cradle of American institutions? Or worried about soaring fertility rates in culturally distinct states like Utah or Texas? Is there not a risk that New Englanders will literally die out, or that Texans will outbreed and therefore wipe out the rest of the American nation? At some point, cultural micromanagement implies not only a strong role for the government in border controls, but birth controls too.

Now, of course, there are plenty of other efficiency-based arguments for implementing either stricter reproductive controls, strict border controls, or both — ones that rest purely on the consequential or utilitarian outcomes of these policies. The eugenics analogy can’t by itself make a comprehensive case for open borders. But what it can do, as economist Scott Sumner’s argued, is really compel us to doubt the wisdom and justness of the typical arguments we use to defend arbitrary border controls.

Scott is not an open borders supporter, though he advocates significant liberalisation of immigration policies. But he found Bryan’s eugenics hypothetical to powerfully illuminate how the arguments we deploy for border controls are actually rooted in exactly the sort of injustice that we would immediately decry if manifested instead in advocacy for reproductive controls:

I’ve actually met academics that favor China’s one child policy. I’m pretty sure they’d be horrified by this story. They’d say it’s unfair to punish the innocent child for the sins of their parents. But is it really possible to have a clean, antiseptic one child policy that doesn’t punish the children?

Now ask yourself how many of those academics that supported the one child policy actually thought through what would happen to the millions of children born in violation to that policy? I’d guess not very many. Now let’s consider immigration restrictions. Is there a clean, antiseptic way to keep out illegal immigrants?

Bryan has not convinced me that 100% open borders are clearly the way to go. But he has convinced me that my objections to his arguments are not as reliable as I might have assumed. My reservations about open borders are actually pretty similar to the reservations that people in a eugenics society would have had to a proposal for an open birth policy.

The fact that superficially similar arguments against birth restrictions would have been rejected out of hand by a eugenic culture should, at the very least, make us do a bit of soul-searching.

Let’s face it, most people oppose open borders at the gut level, and then they search for logical reasons to support the position that had already formed in their reptilian brain.

None of this is to say that all border controls are bad, or that all birth controls are bad. In some cases, the state may have compelling reasons to restrict human reproduction, or human movement. (Forcible sterilisation and mandatory residence registration of sex offenders comes to mind.) There may be a human right to a family and a human right to migrate — but all the same, as long as we accept the authority of our governments, no right is truly unqualified.

But before our governments take coercive action against these rights, they are obligated to weigh the far-reaching implications of doing so, and comprehensively rule out more humane alternatives. The callous attitude towards human life implied by eugenics wrought untold horror and injustice throughout the 20th century, even in what we once thought to be “civilised” societies. Just because the government can micromanage our culture and society through birth controls does not mean it always ought to do so.

And the desire to have a family is just as strong and natural as the desire to move for a better life. We cannot exclude someone from our society and economy without just cause — just as we cannot forcibly sterilise someone, or coercively matchmake a couple, without just cause. Before we enact broad, far-reaching curbs on the exercise of these human rights, we need to be sure that strict controls are the only tolerable option we have to achieve the ends we have in mind. If we wouldn’t force innocent people to have sex at gunpoint to achieve this goal, it’s worth asking why we’d be all right pointing guns at innocent people to accomplish the exact same thing.

Weekly OBAG roundup 18 2014

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Support for open borders is a fundamental tenet of libertarianism, and David Brat is not a libertarian

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I live in Virginia, where unknown challenger David Brat just recently made US national news as a political giant-killer, toppling Eric Cantor from his Congressional seat and running on a vehemently anti-immigration, anti-open borders campaign. Cantor was widely seen as a strong candidate for next Speaker of the House of Representatives, and his loss was a huge shock to the US political establishment. A lot of ink’s been spilled on this, but I want to focus specifically on the libertarian response to Brat’s unexpected victory.

Brat teaches economics at Randolph-Macon College in Virginia, and generally describes himself both as a strong Christian and an adherent of Ayn Rand, a very influential thinker in the libertarian movement. He makes a lot of strong nods to libertarianism in his political rhetoric, although I’m unclear whether he self-identifies as libertarian.

Either way, I honestly don’t care that much about the outcome of this election: I have never liked Cantor, and although he has made some welcome limited moves towards amnesty for some irregular immigrants, he has basically been more pro-closed borders than many others in the political establishment (which says something). It is pretty amazing that Brat campaigned in part on the basis of alleging that Cantor supports open borders, and disappointing that Brat won, but it’s unclear how far his victory reflects voters’ stance on immigration or other policy areas, versus their general distaste for Cantor as a politician and legislator. I wouldn’t even bother to comment on this brouhaha, if not for how libertarians on the internet seem to be reacting to Brat’s win.

Now, full credit to the various libertarian analysts I’ve seen writing about Brat on immigration — virtually all of them dismiss his closed borders stance as inconsistent with libertarianism:

But reading through the reader comments on all these pieces, one cannot help but be struck at the amazing number of self-identified libertarians who are not just skeptical of open borders but outright opposed to it. If they support Brat for his alignment with Christian ideals or Randian thought, perhaps they ought to be aware that to the extent the Bible speaks about borders, it actually advocates for immigrant rights and the human right to migration (see our blog posts tagged Christianity), and that Rand was “indignant” at the idea of opposing open borders.

Although my personal policy stances (not just on immigration) tend to lean libertarian, like some other libertarian-leaners I have some skepticism about identifying as libertarian — in part because of the paleoconservative right-wingers who seem to occupy a disproportionate space in the libertarian movement. Either way, I lean libertarian, and so I feel somewhat obligated to engage with the idea that opposing open borders is consistent with the ideas of libertarianism.

In my view, it is impossible for a consistent libertarian to oppose open borders. One of the fundamental tenets of classical liberalism, which has been adopted (at least in name) by most of its descendants — including modern left liberalism and modern libertarianism — is respect for the individual’s rights and dignity. Prohibiting individuals from moving freely is a prima facie violation of these individuals’ rights. Now, in some or many cases, violating these individuals’ rights may be justified. But what sort of justifications can we provide that would be acceptable to libertarians?

The libertarian case for open borders hinges on the opinion — though I am tempted to call it fact — that you cannot justify arbitrary restrictions on the movement of individual people without resorting to fundamentally illiberal excuses which (to a libertarian) unjustly put the interests of the government or state ahead of the rights of the individual. From a libertarian standpoint, most — if not all — arguments for restricting the movement of individuals who have committed no crime against any identifiable victim simply boil down to collectivism, totalitarianism, or both.

On our site, we list out some common retorts to the libertarian case for open borders. They are:

  1. Enforcement of border controls is not a form of government action, and should be viewed instead as a form of government inaction
  2. Because governments are obligated to put the interests of their citizens above all else (a view sometimes called citizenism), they must prioritise the interests of citizens over the liberty of non-citizens
  3. The people of a state have a collective property right over their state’s territory which grants the state’s government a moral authority or right to arbitrarily exclude any foreigner that the polity sees fit to exclude
  4. That in an anarcho-libertarian world, many individual landowners would be able to and would in actuality exclude immigrants from their land, and therefore in a second-best world with government, governments must similarly exclude immigrants

True enough, virtually every one of these rationales for ostensibly-principled libertarian opposition to open borders has appeared in the reader comments section of the libertarian analyses I mentioned earlier. So let’s dissect them each in turn:

  1. Are states literally spending billions of dollars to do nothing? The barbed wire fences we build and gunships which our governments deploy in our name are surely meant to do more than just sit around and look pretty. It seems almost intentionally obtuse to deny that these things are meant to serve an active, violent purpose.
  2. There are many reasons to be skeptical of the citizenist worldview (or at least its most strong form), but to a libertarian, surely it’s relevant that citizenism outright declares that the interests (not just rights) of some individuals are more important than others’ rights. Sure, you can argue that a fundamental tenet of citizenism is that some people just aren’t entitled to certain rights, but you’re just shifting the goalposts: you can’t justify restrictions on individual movement of non-citizens without resorting to a literally collectivist worldview that says “citizens” are a collective whose interests supersede the rights of individuals that don’t belong to the citizens’ collective.
  3. The “collective property rights” argument literally has the word “collective” in its name. You can’t dress this up with liberal sprinklings of the phrase “property rights”. In the end, you’re still saying that a collective should be allowed to supersede the rights of individuals.
  4. First, I’m not sure the anarcho-capitalist counterfactual is all that compelling to libertarians who embrace minarchism or basically any non-anarchist approach. But even if it is, you can imagine a counterfactual world where many private property owners are happy to build a road and allow anyone to travel on it, whether for free or for a toll, and therefore bypass those landowners less amenable to immigration (if such a concept as “immigration” could even exist in a world with literally no borders). Libertarians who espouse this counterfactual also often take for granted that individual landowners could easily choose to ban natives, not just foreigners, from their lands. Consistent libertarians who take this idea seriously should agitate for stronger mobility controls over other citizens too, to preserve their property rights ostensibly implied by this counterfactual. In light of all this, why should my open borders counterfactual — one which also happens to more closely resemble the real world, with its actual roads built on the common law concept of right-of-way — be any less compelling than this strange hypothetical world?

You may not be a libertarian and find all of this irrelevant navel-gazing, if not possibly counter to your actual views. If so, sorry, but as is hopefully clear, these arguments aren’t aimed at non-libertarians. There are plenty of non-libertarian or non-libertarian-specific reasons to favour open borders and indeed to characterise open borders as a fundamental human right — I’m just intentionally not getting into them because I think the libertarian case for open borders ought to be compelling enough for libertarians.

Now, obviously a decent number of self-identified libertarians are able to reconcile their opposition to open borders with their proclaimed respect for individual rights. I think in general they do this by compromising a little and saying that collectives such as nations or states do have some rights (in some cases, such libertarians have explicitly made this part of their rationale).

Some libertarians no doubt will be tempted to right away dismiss these people as traitors to the libertarian cause. While yes, these people are surely no anarcho-libertarians, on the face of it they don’t seem to me all that different from libertarian minarchists or even other centre-leaning libertarians (such as, most famously, Milton Friedman and Friedrich Hayek, both of whom seemed content to accept the state even though this obviously necessitated some compromises on individual vs collective rights).

But saying that a collective has rights does not tell us what the collective is allowed to do — what its rights are, or how it may exercise those rights. I contend that a collective entity such as the state simply lacks the authority to forcibly exclude anyone, citizen or not, from its territory or jurisdiction on the basis of arbitrary reasons. Individuals may delegate collective authority to legislate to the government of a state, but that does not give the government a justifiable reason to arbitrarily exclude people whose last name starts with the letter Z, or people who have a freckle on their chin. It certainly does not give the government a justifiable reason to arbitrarily exclude people because of their race or sex or even sexual orientation.

I simply go one step further to say that place of birth should also be up there on that list of intolerably arbitrary criteria. I am not saying that your place of birth is irrelevant to who you are. It is no less relevant to who you are than your sex, your race, or a whole host of other things about you. I am simply saying that as far as the government is concerned, these conditions of birth should not be any of its business when it comes to deciding who it can exclude.

Now you can protest my general statement that governments cannot justifiably exclude people in an arbitrary manner — in which case you seem to be endorsing government exclusion of people on the basis of race, sex, and a whole bunch of other things, which in general is repugnant to libertarianism (a vocal racist fringe who self-identify as libertarian notwithstanding). But more likely you’ll protest my specific statement that exclusion of foreigners is arbitrary.

Now it’s certainly true that foreigners are different from citizens in a whole bunch of ways. They often grow up speaking a different language and operating under a different set of institutions. But our own citizens also grow up in a variety of communities, institutions, and backgrounds. Why do we treat citizens as morally non-excludable, and foreigners as excludable?

The objection seems to be that foreigners are fundamentally different from citizens. But why should this matter to a libertarian? If foreigners agree to respect the state’s laws, then they don’t harm any citizens and certainly don’t harm the state. If foreigners run afoul of the state’s laws, then the state may exclude them. The state certainly has no compunctions about excluding citizens who violate its laws, although it typically excludes them from society by jailing them instead of deporting them.

Perhaps anti-open borders libertarians worry that foreigners’ promise to respect the laws can’t be trusted. But judging from what they’ve written on this issue, it seems the clear theme is this: foreigners will respect the law, and that’s the problem. To be specific, they’ll obtain welfare as provided for by the state’s laws, and as Milton Friedman supposedly told us, society will literally collapse as a result.

To these libertarians, the claim that open borders and a welfare state are not compatible is a self-proving result; it also often seems to self-axiomatically lead to the conclusion that a welfare state which opens its borders will collapse into violence and disorder. Now, Friedman never stated that a welfare state with open borders would collapse into violence, so that second half seems completely suspect to me. But even so, it seems to me that libertarians are also completely taking for granted that Friedman must have been right when he declared this fundamental incompatibility.

The biggest reason Friedman was wrong is simple: welfare states generally do not determine who has access to their benefits simply on the basis of who is present on their territory or in their jurisdiction. There is almost always a whole bunch of paperwork you have to fill out to get your benefits, which is how the government makes sure you’re eligible. You can’t just show up and say “I’m a warm body, so give me my benefits!”

You might argue discrimination in benefits access isn’t an implementable public policy. But virtually every welfare state you can think of, even the most generous ones, already curtail foreigners’ and/or immigrants’ access to welfare benefits in some way. So it’s not impossible; it’s already being done. Americans often seem to forget that part of Bill Clinton’s sweeping welfare reforms included stricter eligibility criteria for immigrant access to federal benefits.

You might say that our insistence that the government refrain from arbitrarily excluding people inevitably forces us to open benefits access to anyone irrespective of birth condition. But this confuses two very different things: under the collectivist principles we’ve been taking for granted, governments have the authority to exclude some people from society, and they also have the authority to subsidise some people. These two things are separate. The criteria you use to decide who to exclude don’t have to be the criteria you use to decide who to subsidise.

Exclusion is a matter of fundamental justice; abuse of the state’s power to exclude is a violation of the fundamental human right to associate with other people. Fundamentally everyone agrees the state exists to provide criminal and civil justice services — failure to provide these in a just and fair manner is unconscionable. Subsidies on the other hand are a matter of redistributive justice or compassion. Yes, these are things which many if not most libertarians reject as any reasonable basis for government policy — but if we’re taking the welfare state as a given, we are still taking as a given that the principles under which welfare benefits get doled out may and ought to differ from the principles under which we decide who to criminally punish and exclude.

So Milton Friedman was just wrong here: the welfare state does not fundamentally require border controls to limit access to benefits. The welfare state already has access to documentary evidence which it uses to determine eligibility. It is not just strange to insist that the police-military state be allowed to violently exclude people for the sake of protecting a limited pool of welfare benefits; it is completely unnecessary. The welfare state doesn’t need you to violently exclude anyone, because it already has its own process for checking people’s papers to confirm eligibility for benefits.

Grasping for straws, anti-open borders libertarians finally reach for perhaps the least libertarianism-compatible of all objections so far: the claim that immigrants will implement or encourage citizens to implement more statist policies, such as an expansion of the welfare state, and that to protect what little libertarian policies are left, it is imperative for libertarians to support the exclusion of immigrants. This argument is so patently unjust and transparently unlibertarian that I am amazed anyone can make it and call themselves libertarian with a straight face.

Let’s take for granted the questionable empirical claim that immigration leads to an expansion of the state’s power over individuals. How does this justify restricting immigration, without also justifying a whole host of other unjust exclusionary policies?

After all, besides immigrants, you can think of a whole bunch of other demographic groups who seem inclined to oppose libertarianism: in the US context, these include people like blacks, women, perhaps Jews. Why shouldn’t libertarians support policies that exclude these people too? You know what: allowing blacks to eat means that there’ll still be blacks around to oppose libertarian policies. Therefore, a good American libertarian should support policies that restrict the sale of food to African-Americans. Force the state to starve the statists, and ensure a brighter future for liberty!

You will surely object: hey, libertarians should oppose policies that unjustly exclude citizens, but libertarians may and should support the exclusion of non-citizens who hold the wrong political beliefs. But what rationale do you have for holding non-citizens’ rights to a different bar? Now we go back to all the rationales you cited earlier: collective property rights, bla bla bla.  But it sure seems to me like your whole project to erect an edifice of libertarian arguments for closing the borders is actually tearing down liberty, not building it up: if you’re so willing to make compromises on the liberty of people who’ve committed no crime other than being born in the wrong place, or thinking the wrong way, it’s questionable whether you’re committed to the liberty of anyone else at all.

Let’s say you’re all right with the idea that libertarians shouldn’t oppose open borders, but still find it a self-defeating political strategy to “eat your own” when it comes to the likes of David Brat. After all, when there’s someone saying the right things about markets and all freedom and all those things libertarians love, but also saying the wrong things about some other things, is it fair to criticise him? Especially when he’s doing well in the polls and might make a real political splash?

I am not all that qualified to pontificate on the political ramifications here, but let’s focus on whether support of open borders should be a top consideration in assessing someone’s libertarian credentials. From our discussion here, it seems to me that any libertarian who opposes open borders either has some serious missteps in their thinking, or simply rejects, in very large part, libertarianism’s ostensible commitment to the rights and dignity of the individual. Libertarians who oppose open borders simply should not exist; either you favour open borders, or you aren’t a libertarian.

This is not an arbitrary hurdle, such as “Well he doesn’t fully oppose government subsidisation of healthcare, so he must be a statist nut” (as was said of Robert Sarvis, the Libertarian Party candidate for Governor of Virginia in 2013, when he articulated a healthcare policy that didn’t boil down to “Abolish all government subsidies”). No, if you are a libertarian, the way you think about open borders cuts to the core of what it means to truly respect and uphold the rights and dignity of individuals. Opposing open borders is not just putting the collective ahead of the individual in a few fringe cases; it is literally letting the collective trample on individuals who have done nothing wrong except choosing to be born in the wrong place or holding the wrong political views. This cannot be libertarianism.

For centuries, the clarion call of liberals standing for liberty has been: “I may disagree with what you say, but I will defend to the death your right to say it.” You can come up with clever pseudo-libertarian justifications for opposing open borders, but those seem to me to virtually always devolve to: “I may disagree with what you say, and so if statists will let me, I’ll put you to death.” That characterisation may seem uncharitable, but I cannot see how you can describe yourself as committed to the rights of the individual if you have a gap in that commitment big enough to drive the lives of billions of people right through.

For decades, a commitment to the free market has been a key component of the libertarianism acid test. But as many libertarians responding to David Brat have observed, you cannot have a free market when you ban your citizens and billions of other individuals from doing business as they would like to do it in your country. But worse, you cannot have a free society. A society which spends billions of dollars to exclude billions of peaceful individuals by using violent force can hardly call itself free. No libertarian should want any part of a society built on the active and continuing oppression of innocents who have committed no crime worse than being born on the other side of a border.