Recently I wrote a long post on the history of the abolition of slavery, arguing along the way that the abolitionists set a great example for the open borders movement to follow. I promised then to “explain in a follow-up post why I don’t think open borders can expect to get much benefit from riding the coattails of, or emulating, the gay marriage movement.” I do so here. To keep the scope limited, I focus on the US case.
Currently, the gay marriage movement stands out as the paradigm case of a successful social movement, so it is sometimes suggested as a model to emulate. There is some overlap between the two causes, e.g., Andrew Sullivan gave a friendly link to Dylan Matthews’ Vox article about open borders. Jose Antonio Vargas, a leading civil disobedient and immigrant civil rights activist, whom I praised in my article “A Face for the Faceless,” is also gay and sees gay marriage as a major moral cause of our times, along with immigration reform. (Vargas does not seem to support open borders, but as a champion of civil disobedience, I consider him crucial in moving immigration reform forward.)
I. Inclusiveness, Tolerance, “Why Not?” and Cheap Ways to Gain the Moral High Ground
First, a few superficial similarities between the open borders and same-sex marriage movements.
People vary in their degree of attachment to the status quo, and it is among those least attached to the status quo, whom we might call the “why not?” people, that open borders and same-sex marriage both tend to make their first and easiest converts. “Why not?” isn’t really a good reason to open the borders or recognize same-sex marriage, of course. But some people seem to presume that if they can’t immediately think of an answer to “why not?” there’s probably a good reason to stick with the status quo, while others presume that there isn’t. I’ve seen those who give way to “why not?” embrace same-sex marriage and open borders with similar ease.
Open borders and same-sex marriage can both be associated with values like “inclusiveness” and “tolerance.” An “inclusive” person will gladly include same-sex couples in the institution of marriage, and gladly include foreign-born persons in the American nation. Would “inclusive values” also implied letting women be Catholic priests, mediocre students study at Harvard, and untrained amateurs work in the dental profession? Such questions expose the ultimate vacuousness of “inclusiveness” as a value. Again, a “tolerant” person might gladly tolerate same-sex couples getting married and foreign-born persons living in the USA, but would he or she also tolerate rape, murder, hate speech… or even people talking loudly in a classical music concert? For that matter, would tolerant people tolerate Christian pastors preaching from Romans, chapter 1 (in which homosexuality is condemned as unnatural, shameful, and a divine punishment for idolatry)? Vipul has reflected more deeply and sympathetically on tolerance than I’ll attempt to do; but as I see it, tolerance and inclusivity are too wishy-washy to do any real work in ethical argument or constitutional design. Still, there are such things as more or less tolerant attitudes or temperaments, and in my experience, inclusive, tolerant people tend to be the first to embrace open borders and same-sex marriage.
Another secret of the gay marriage movement’s success is that supporting gay marriage is a very cheap way for people to feel good about themselves. To work in soup kitchens or serve in the military are costly ways to enhance one’s own moral self-esteem and appear good in the eyes of others; but to say “I’m for gay marriage” is very easy and cheap. It’s equally cheap and easy to say “I’m for open borders.”
In general, this kind of “cheap talk” is a crucial driver in the history of virtue. Plenty of people are willing to praise virtue who don’t bother to practice it. And since people like praise, widespread praise for virtue motivates others to practice it. Eventually, one hopes, and it often happens, that people will come to practice virtue for the love of virtue rather than for the love of praise. And it is when virtue remains steadfast in the face of the world’s murderous hatred, as in the cases of Socrates and Jesus, that virtue shines most brightly, and does the most good. But people don’t usually learn to love being virtuous until they’ve practiced it for a while for other reasons. The mere threats of power do the initial work, causing children to stop hitting each other and stealing cookies and telling lies. Later, praise becomes the main motivator, and people behave bravely or prudently or justly in order to win the praise of their fellow men. Without punishment and praise doing much of the early work, it is doubtful whether anyone would achieve much virtue. British abolitionists made their cause one to be proud of long before the British made major financial sacrifices to buy out the slaveholders and abolish slavery. American abolitionists, too, raised people’s moral outrage against slavery for decades before their moral fervor reached a point where over 300,000 Union soldiers died liberating the black slaves of the South. If the open borders movement can make “I’m for open borders” widely recognized as a badge of moral honor, that will be a major point gained.
An important difference between open borders and same-sex marriage is that it is widely and plausibly held (though I think it’s a half-truth at best) that same-sex marriage is a victimless reform which will have hardly any effect on the lives of non-LGBT individuals, or for that matter of LGBT individuals who don’t choose to marry. If so, supporting same-sex marriage isn’t just cheap talk but cheap action. Open borders, by contrast, will involve, if not perhaps great sacrifice, then certainly great upheaval. Many will benefit– perhaps wisely-designed policies could even ensure that everyone benefits— but lives and societies will be transformed. That doesn’t alter the fact that saying one is for open borders is a cheap and easy way to display one’s virtue and benevolence.
Finally, I think generous motives are a commonality of the open borders and same-sex marriage movements. The main reason non-LGBT individuals advocate same-sex marriage seems to be a desire to benefit LGBT individuals. The main motive for advocating open borders seems to be charity towards the world’s poor. But there are generous motives on the other side as well: among social conservatives, who want to protect the institution of marriage for the benefit of children; among Christian pastors who want to save homosexuals from sin and Hell; among nativists who want to protect the wages of their fellow citizens from foreign competition; and among moderates like Tyler Cowen who favor more immigration but think open borders is too risky.
II. Open Borders Advocates Have Much Stronger Arguments
Second, in my view at least, the open borders movement is vastly superior to the gay marriage movement in the quality of the arguments it has at their disposal. The following two slogans…
1. “Gay people are not demanding special treatment, just the same freedoms that everyone else takes for granted: to love whom they please and to marry whom they love.” From the conclusion of The Economist‘s “The gay divide.”
2. Open borders is “the efficient, egalitarian, libertarian, utilitarian way to double world GDP.” From Bryan Caplan, adopted as the motto of this site.
… may serve as an illustration.
“Love whom you please and marry whom you love” is, prima facie, a blatant falsehood. We love many people, including our children, our friends, and our favorite writers, living and dead, as well as our pets, our countries, and the beauty of nature. Setting aside loves of non-persons, much of the love we have towards other people is not suitable for being embodied in marriage. We love our children, but cannot marry them. We love our friends, but it has been well-understood until recently– what the official position on this is in our new topsy-turvy world is supposed to be, I have no idea– that most friends are not proper candidates for marriage. One marries only one other person (at a time); one hopefully loves many other people. A married man may quite innocently love another man’s wife, as a friend, a formative influence on his thought, or a sister in Christ; but he can’t marry her. We don’t “love whom we please, and marry whom we love,” for love takes many forms and most of its forms can’t properly be expressed in marriage. If we try, gallantly, to save slogan (1) only by reading into the word “love” the meaning “love in a manner suitable for expression in marriage,” we only render the slogan wholly question-begging. For whether or not homosexual love is suitable for expression in marriage is just what the whole dispute is about.
Slogan (2) is as hard-hitting and cogent as slogan (1) is silly and evasive. Each of the four words “efficient,” “egalitarian,” “libertarian,” and “utilitarian” is the gateway to volumes of argument. The slogan captures the meta-ethical* robustness of open borders. Whatever your premises may be, says the slogan, they compel you to favor open borders. Is freedom your top value? Open borders vastly expands the freedom of human beings to meet their needs and pursue their dreams. Is utility what you care about most? Open borders is efficient and doubles world GDP. Are you an egalitarian, specially concerned to help the least well-off? Open borders will specially benefit the least fortunate members of the human race, those with the ill-luck to be born under corrupt dictatorships and totalitarian tyrannies and/or in the world’s poorest countries. Of course, all these claims can be contested– the claim that open borders would (roughly) double world GDP is highly contestable, though I tentatively believe it— but slogan (2) declares the terms of a bold and honorable debate.
Other than the uncritical prejudice that “nondiscrimination is the 11th commandment,” I can never discern their meta-ethics of same-sex marriage advocates. From what meta-ethical standpoint, for example, would they respond to the following argument?
Same-sex marriage shouldn’t be recognized because it will get many homosexual and bisexual men and women stuck in relationships they’ll want out of, and they should be free to leave without the stigma and complications of divorce. Yes, straight marriage has the same downside, but it has a larger upside: children. Not in every case, but in general. And that makes it worth it. But gays will be better off without the institutional pressure to commit. That’s not “paternalistic,” by the way, unless you think that it’s “paternalism” to allow no-fault divorce and thus deprive people of the right robustly to bind themselves in marriage, and for that matter, that it’s “paternalism” to abolish slavery and thereby prevent people from selling themselves into it. Civilized societies do not recognize unlimited rights of self-binding, and since the chance of children (among other things) makes the stakes for straight couples different from those for same-sex couples, to recognize different degrees of self-binding is appropriate. Strong self-binding in same-sex couples is still less desirable because sexual orientation seems to be fluid: there’s a good chance that a gay or (especially) lesbian spouse will not even self-identify as gay or lesbian in ten or twenty years. [UPDATE: See here and here for more on sexual fluidity.] Moreover, gays and lesbians generally do not conform to the norms of permanence and exclusivity that define (heterosexual) marriage. And there’s no reason either to expect or to desire that they should. Permanent, monogamous marriage is desirable for reasons arising from the special complementarities and jealousies of male and female, long understood by human tradition and more recently elucidated by evolutionary psychology. Those reasons do not cross-apply to same-sex couples. If “marriage” is made available to gay and lesbian couples, it will be behaviorally different. We would do wrong to try to force it to be behaviorally the same, to force same-sex couples into heteronormative molds. But if we don’t, it’s inconvenient to use the word “marriage,” which until now had a quite definite meaning, to describe LGBT arrangements that tend to be quite behaviorally dissimilar both from straight marriage and from each other. And it might be worse than inconvenient, if the “marriage” label facilitates the spillover of LGBT practices and norms into straight people’s behavior. Leading advocates of same-sex marriage have suggested that “married” gay men are likely to be “monogamish” rather than monogamous. That’s fine for them, since there’s no reason either to desire or to expect that same-sex couples should be permanent or exclusive, but would be disastrous for straight couples, who need all the willpower and cultural reinforcement they can get to fight temptation and maintain the sexual exclusivity that is crucial for the happiness and stability of their marriages.
I could imagine utilitarian and natural rights counter-arguments to this, but I think gay marriage advocates would be reluctant to use them, because any commitment to an explicit meta-ethical position levels the playing field too much. You can’t very well call an opponent of same-sex marriage a “bigot,” or allege a “bare desire to harm,” if the question turns on a delicate balance of utilitarian arguments pro and contra. Or, if your ethics are based on natural rights, you might with difficulty be able to maintain the position that the natural rights of man include a hitherto-undiscovered right to marry a person of one’s own sex, but you can hardly deny that there is any “rational basis” for resisting a claim about human nature that most of historic mankind, including all the great thinkers of the past until five minutes ago, would have dismissed as absurd. Since gay marriage victories have mostly been won through the courts, it damages the cause to permit opponents to discharge the absurdly easy burden of showing that they have some sort of arguments for their position, and aren’t just acting from spite towards homosexuals. If they do that, they raise the question: Why don’t we settle this through the democratic process, instead of having courts throw out democratically-passed laws by reinterpreting constitutional clauses in ways that would have amazed their authors? Same-sex marriage advocates prefer to avoid these deep waters, and stick to what works best for them, namely, the shallow semantics of “equal rights,” which enjoys enormous popularity even though the notion does not stand up to moderate critical examination. If they can bandy the phrase “marriage equality” about enough, while alleging “discrimination,” and creating an aura of inevitability by citing rising public support and telling opponents they’re on “the wrong side of history” (though the trend towards rising support seems to have paused, perhaps plateaued), without ever getting bogged down in a straightforward philosophical argument about what marriage is, they can come off looking like the muddle-headed good guys in a fight with pedantic puritans, and win by a kind of attrition, as the exhausted and intimidated public shrugs and decides to drift with the times.
Now, open borders advocates could follow this example, basing their case on “equal rights,” and insisting that “equal rights” be extended to all human beings. I’ve written before about how equality of opportunity, if seriously pursued, points to open borders more urgently than to any other single policy. I regard this more as a reductio ad absurdum of equality of opportunity, than as a positive argument for open borders. Open borders is a wise, feasible, and beneficent reform, while equality of opportunity is an ideal both unattainable and undesirable, a nihilistic delusion, the pursuit of which, if sufficiently aggressive, would require an ever more invasive leveling government, and impoverish mankind by erasing much wholesome, pleasant, and productive diversity. But since “equal rights” is a widely accepted ideal, open borders advocates could, in principle, take advantage of this error by pushing our agenda under the fashionable slogan.
I think it’s a bad idea. First, people won’t be as easily duped by the empty semantics of equal rights on a really important question like migration, as they are on a question like same-sex marriage which many think won’t really affect them. Second, though the successes of the same-sex marriage movement have certainly reduced my faith in the power of reason to influence public opinion, I still think good arguments are ultimately a valuable asset to any cause, and bad arguments are a liability. I think the same-sex marriage movement would use better arguments for their cause, if such arguments were available. They are available for open borders.
I can’t resist one last illustration of the unfathomably bad quality of some arguments made by the same-sex marriage movement, as an example of what not to do. Apologies for a couple of interruptions [in brackets], but I got so impatient with the disinformation that I couldn’t wait till the end of the blockquote to correct it. Will Saletan writes in Slate:
The first thing to understand is that homosexuality isn’t a sin. It can’t be, because it isn’t a choice. It’s not like promiscuity or premarital sex or cheating on your spouse. It’s just the way some people are born. [Note that this is myth: identical twin studies prove that homosexuality is not genetically determined.] If you’re not sure about this, talk to people who are gay. They’ll tell you that they didn’t choose to be gay, just as you didn’t choose to be straight [which is probably true but does not imply that people are born homosexual]. Their lives would be a lot easier if they could switch. Many of them have tried. They’ve learned the hard way that they can’t change their sexual orientation any more than you can change yours.
This beggars belief. Saletan seems incapable of understanding the very, very simple distinction between homosexual attraction, which is presumably largely involuntary and is not a sin, as Christian churches have always understood, and homosexual conduct, which is what Christianity and most other faiths and cultures condemn as a sin. Is he really so stupid as not to be able understand that distinction? Or is he just obfuscating in order to confuse his audience? I have no idea, and I suppose I don’t really care, but it’s very depressing. How is one to deal with people who make such terrible arguments? If I were debating someone for whom I had moderate intellectual respect, I would swiftly punish such lapses with open scorn, which is sometimes an indispensable tool of argument, a way of raising the intellectual level of discussion by getting the simplest errors out of the way quickly, a way to signal to one’s opponent to be more careful, more responsible, more rigorous. Certainly, if I were ever so foolish as to make such an argument, I would want my opponent to teach me a lesson by ripping me to shreds with the utmost contempt, so that I might never commit such a blunder again. But one can’t use open scorn all the time without the debate getting unedifying. Which makes it difficult to talk to advocates of same-sex marriage.
There is a delight simply in reasoning well, in arguing honestly, in being ruled by logic and evidence and seeing where it takes you. May the open borders movement continue to be infused with this delight. May we strive to be admired even by our opponents for our fairness to all arguments, our open-minded acceptance of all manner of logic and evidence, the clarity and rigor of our thinking. Our task is not to put the reasoning mind to sleep, or bludgeon it into silence, but to awaken it.
A notable difference between open borders and same-sex marriage is that whereas Christianity is the main impediment to the complete success of the same-sex marriage movement, institutional and pious Christianity already has pro-immigration leanings, and may develop into an open borders ally.
The movement to abolish slavery was an overwhelmingly Christian achievement. By contrast, Christianity is the main impediment to the complete success of same-sex marriage. True, some churches have endorsed it, but that’s a quick route to decline and schism. As a rule, it’s the strict churches that remain strong, while churches that prefer fashion to faith lose their credibility and unravel. Religion is the most-cited reason in polls for opposing same-sex marriage. Some pastors are now refusing to perform any civil marriages at all, basically on the ground that same-sex marriage has rendered civil marriage a travesty which should not get church legitimation. Indeed, given the firm opposition of Catholics, Orthodox, and conservative Protestants, it’s not clear what same-sex marriage advocates think their endgame is. The church has been around for two thousand years and it’s not going to disappear. It doesn’t change its mind about such things. The persecution of bakers, photographers, and others whose consciences forbid them to assist with gay “weddings,” may foreshadow the answer to this question.
The Christian position on open borders is different. I’ve written about “the coming Catholic movement for freedom of migration” and about how the Old Testament law provides a template for an open-borders society. My co-blogger John Lee, impressed by the Bible’s teachings on immigration, asked “Why don’t Christians care more about open borders?” but the analogy with slavery would counsel patience. Christian societies tolerated slavery for generations, but in due course it was Christians who spearheaded abolition. We may hope the same pattern will hold for open borders. Already, Christian churches are providing sanctuary to undocumented immigrants. Religious piety is a predictor of favorable attitudes to immigration, and most Christians support immigration reforms that would let undocumented immigrants stay. Advocacy of immigration reform by Catholic bishops and the pope has been strong and persistent, attracting angry attacks from nativists. Evangelicals have been less favorable, but a description by Michael Gerson of how evangelicals are split on immigration is somewhat encouraging:
In the immigration reform debate, evangelicals have become a political prize claimed by restrictionists and reformers alike. Both sides have a case to make.
Of the major American religious groups, white evangelicals are the most skeptical about immigration. According to a recent poll by the Pew Research Center’s Religion and Public Life Project, more than 60 percent believe that the growing number of immigrants “threatens traditional American customs and values” and more than half view immigrants as an economic burden rather than contributors.
At the same time, many evangelical leaders and institutions — including the National Association of Evangelicals and the Ethics and Religious Liberty Commission of the Southern Baptist Convention — are high-profile advocates for comprehensive immigration reform that includes a path to citizenship for undocumented workers…
[There is] an interesting distinction between cultural issues among white evangelicals. Those who attend worship services more frequently are more likely to oppose same-sex marriage — tending toward the traditionally conservative position. But immigration provides a contrast. Those who attend worship services more frequently are less likely to see newcomers as a threat to American values. They tend toward the less typically conservative view.
I’m sorry to say that it’s possible to read the public opinion data differently data, and I wish that my fellow Christians were more unanimously Christian in their views on immigration. My confidence here doubtless reflects my own Christian faith, which is strengthened by but also colors my view of the long history of Christianity driving progress towards social justice, though often much too feebly and haltingly. In part, though, hope simply has nowhere else to turn. Open borders is a very remote goal, whose base of support, though possibly growing, remains minuscule. Without the Christian churches coming on side eventually, it’s hard to imagine what strategy could lead to success. The abolition of slavery was a consequence, not simply of Christianity, but more specifically of Christian revivalism, of an upsurge in Christian piety. I suppose my hopes rest on some new Great Awakening sweeping the Christian churches, strengthening them, strengthening the pious within them relative to the complacent and lukewarm, and further Christianizing the churches through deeper reflection on the moral imperatives latent in the Gospel message. It has happened before.
There are even some respects in which open borders arguments are favored by the Christian reaction that the same-sex marriage movement is provoking. Civil disobedience to the same-sex marriage movement by Elaine Huguenin, Jack Phillips, and Melissa Klein should make Christian conservatives more sympathetic to civil disobedience by Jose Antonio Vargas or Fabian Morales. There’s a tension between demanding a stronger, more invasive government to deport undocumented immigrants, and trying to stop a strong, invasive government from imposing a top-down revolution in social values by suppressing the traditional view of marriage. A leading slogan in the struggle against gay adoption is that “every child has a right to a mother and a father.” The pope is on board. Research indicates that children do better with their mother and father, which in any case should be obvious from sociobiology, since it’s in the interest of each sex’s selfish genes to have whatever parenting strengths the other sex typically lacks, and not to waste resources on parenting strengths the other sex has in abundance. Now, if every child has a right to a father and mother, it would seem to be a violation of this right when deportation separates families. Again, as opponents of same-sex marriage movement have appealed to natural law, a new interest has been kindled in the important but difficult and long neglected idea that law should have a basis in moral reality and can’t be regarded simply as an arbitrary social convention. Natural law reasoning favors open borders, since laws restricting migration are clearly mere social conventions rather than moral fundamentals. That if same-sex “marriages,” though recognized by the state, can’t really be marriages, because they have no basis in natural law, then “illegal” immigrants can’t really be illegal because they haven’t violated natural law, is hardly an obvious deduction. But both ideas grow out of natural law thinking, and the more people reflect on and commit themselves to the first claim, the readier they will be to understand the second. My 2010 book Principles of a Free Society was an argument for open borders from natural law premises.
IV. Open Borders, Same-Sex Marriage, and Constitutional Democracy
Finally, there are basic tactical differences between how the same-sex marriage movement has achieved success, and how the open borders movement might do so. Both movements have a problematic relationship to constitutional democracy, but not in the same way.
Although polls now show majority support for same-sex marriage, relatively few of the victories of the same-sex marriage movement have been at the ballot box. Not until 2012 did two states, Maryland and Maine, approve same-sex marriage at the ballot box. By contrast, 30 states have passed state constitutional amendments banning same-sex marriage. Same-sex marriage is now legal in most of the USA, but this is a result of judicial decisions, not referenda or even the acts of elected officials. I’m surprised that there hasn’t been more pushback from same-sex marriage advocates against same-sex marriage being imposed by the courts. Now that it seems to enjoy majority support, same-sex marriage could presumably get democratic legitimation, being passed through referenda. Courts that overturn same-sex marriage bans have to do so by interpreting constitutional clauses in ways that their original authors, as well as many generations of jurists until quite recently, would have disagreed with, and indeed, would have found amazing and ridiculous. Such “legislating from the bench” is a logically absurd and anti-democratic practice, but it has worked, for now. Should the open borders movement follow suit, and look for success through the courts?
Ilya Somin has offered, here at Open Borders: The Case, an originalist argument that the Constitution doesn’t authorize Congress to restrict immigration. I would be delighted if this logic were to persuade the Supreme Court. Am I being inconsistent and opportunistic here, deploring judicial review when it goes against a side I’m on, and asking for it when it would help a side I’m on? No. I don’t object to judicial review when it represents a good-faith effort to realize the intentions of the authors of the laws. It seems plausible that the framers of the Constitution didn’t intend to endow the new federal government with power to restrict immigration, as distinct from the power to confer citizenship; or at least that if some might have desired to endow it with such power, they didn’t put anything in the Constitution which they regarded as comprising a grant of that power; and that if they were informed that future judges would discover they had not granted that power to Congress, they would either have nodded with approval, or at most, found the judgment an unfortunate but understandable reading of their words. By contrast, if the authors of the 14th Amendment had been given a time machine and seen President Obama claiming that the 14th Amendment requires nationwide same-sex marriage, they would have not only have clarified their language to exclude this interpretation in the clearest possible way, but would probably have added a few clauses to call down God’s curse on any lying scoundrel of a judge who might someday perpetrate any such absurdity. So while the pro same-sex marriage decisions are anti-democratic and illegitimate, a pro-open borders decision would be right and proper.
But I don’t expect it to happen. Originalism has been defeated and defeated for decades as the Supreme Court has systematically eviscerated the enumerated powers doctrine and persistently expanded federal power, using the flimsiest of reasoning. In effect, the Court has overturned the limited government principles established in the Constitution and replaced it with omnicompetent government restrained only by positive limits such as those stated in the Bill of Rights. To apply originalist reasoning such as Somin’s on a consistent basis would require the Court to overturn half the legislation passed in the 20th century, radically rewriting the social contract. That would be a lot less undemocratic than it might sound, since the voters could, after all, re-establish everything the Court overturned through constitutional amendments; but it’s still hard to imagine the Republic tolerating such an unexpected overhaul. And while the new equilibrium that would emerge after this sort of originalist revolution might be more libertarian than the status quo, I’d be very surprised if the voters didn’t pass some sort of constitutional amendment restoring the government’s right to restrict migration. So I doubt open borders could be established through an originalist revolution in the courts, and anyway I don’t there’s any chance that an originalist revolution will occur.
Much more promising is the executive branch. David Bennion has argued in this space that “executive action, not legislative reform, is how US immigration policy gets made now.” I’m an enthusiastic supporter of Obama’s executive semi-amnesty, on the substance, and I also think, tentatively, that presidential nullification is probably a good constitutional innovation. It’s one more check on the abuse of power. It might also weaken the rule of law, if lots of presidentially nullified laws remain on the books ready to be re-activated by a friendly president. What I would really like is a combination of presidential nullification with a robust doctrine of desuetude. Then, if presidents left the laws unenforced for a few years, they would cease to be laws, making a nice way to roll back the large excess of laws that the country is burdened with.
Presidential nullification is far less undemocratic than non-originalist judicial review, since presidents are democratically elected. Still, I won’t stress the democratic credentials of the open borders movement vis-a-vis those of the same-sex marriage movement, because I’m far more of a believer in freedom and justice than in democracy, and I care far less about whether the people or a hereditary monarch is “sovereign,” than about how robust are the limits on the sovereign power, and how conformable to the natural law are its statutes and conduct. There are serious difficulties in defining democracy, which the open borders issue forces into the open. For example, I have little doubt that US open borders would be established very swiftly if foreigners could vote in US elections; does that make open borders a highly democratic policy, or is it irrelevant? I have sometimes argued that “immigration restrictions are the mathematical limiting case of undemocratic law,” since democracy is a good thing because the people who have to live under the laws get to have a say in making them; and the set of people (citizens) who have a say in making immigration laws is the exact inverse of the set of people (non-citizens) who are subject to them. Doubtless my usage here deviates a bit from the mainstream; but I don’t think the mainstream has any clear or consensus notion of what democracy is, or why it is good.
Even my objection to non-originalist judicial review is not that it’s democratic but that it’s dishonest. Judges of the “living Constitution” type pretend to interpret the law when they’re really imposing their own policy preferences arbitrarily, so I condemn them as frauds. I much prefer someone like Tsar Nicholas II, who didn’t pretend a commitment to democratic norms. I would like liberal judges better if they said openly: “American voters often do things we think are bad, so we’re selectively overturning democracy in the interests of what is good and right.” Then I’d hope our new judicial overlords proved to be more just and beneficent than the democratic regime they supplanted. But liberal judges’ pseudo-democratic posturing denies me the option of respecting them.
* I use the word “meta-ethics” in a slightly different sense than philosophers do. For me, utilitarianism is a meta-ethical position; virtue ethics is a meta-ethical position; natural rights is a meta-ethical position; Kantian deontology is a meta-ethical position. Such meta-ethical views relate to the meaning and source of morality generally, as distinct from ethical views, such as whether it’s right to divorce a silly and spendthrift husband, or to spare someone’s feelings by telling a lie.
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