The moral case for open borders is universal. Most of the practical arguments can also be made in a country-independent fashion. If our case for open borders stands, it applies to all countries, not just the US. However, when arguing for open borders against restrictionists who use American documents for the purpose of arguing for restrictions in the United States, their arguments must be met, inherently, in an US context. These documents can be mistaken in their moral prescriptions and thus talking about them should not be considered as a definitive case for or against open borders. But what this discussion does do is help shed light on the context and history of immigration debates. In so far as an individual believes these documents to hold moral truths, a discussion of what they truly argue for is appropriate. If American history and legal theory are not your cup of tea you may want to just skip this post. Otherwise, let’s have it!
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The key being those five words. So does the preamble, and perhaps the Constitution in general, support a citizenist philosophy and allow anti-immigration policies? Fellow blogger Nathan Smith has touched on this issue before. I intend to tackle the issue from a somewhat different angle, specifically whether the Constitution, and indeed other founding documents of this country, justify a citizenist restriction of immigration. But enough prologue, let’s dive into this question.
The Constitution was set up so as to try to compel the government to follow the will of the people within certain limitations. Thus one might legitimately argue that a limited citizenism is somewhat evident within the document, though of a limited sort that also takes into account individual rights. Other portions of the Constitution strongly suggest that individual rights do no stop with American citizens. Take for example the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
This amendment’s terminology would indicate that this right is not restricted to citizens or else the Constitution would say “citizen” as it does elsewhere (see page 370). So the Constitution does provide that non-citizens have rights that must be respected by the government. But does this include the right to migrate? In the powers granted to Congress there is only mention of the obligation to establish a “uniform Rule of Naturalization.” This is not, and was not seen at the time, as debates over naturalization rules in the 1790s show, as the same as establishing a rule on who can live in this country. Yet, in the very next section there is this statement:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
The fact that there was a limitation on Congress would seem to indicate that after that twenty years Congress does have a right to limit migration. However, there are other ways to interpret the constitution. Lysander Spooner, a nineteenth century abolitionist and legal theorist offers this rule for interpreting the Constitution:
Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.
Thus, Spooner argues that no interpretation of a law should be made that violates individual rights unless no other interpretation is possible. This was an argument he used to attack the idea that the Constitution authorized slavery (I leave it to the reader to explore the above link for those arguments). If we have rights that come before the existence of government, a position which the founders undoubtedly supported, then those rights can only be abridged by the government if the people specifically grant the government that power. Think of this as the logical end of the doctrine of enumerated powers and as a method to force anyone with the intent to abuse their power to do so openly. Unless the government has explicitly and definitively been given the power to violate a right, it cannot legitimately do so.
So is the right to migrate an actual right? For this I’d refer the reader to Thomas Jefferson:
To remind him that our ancestors, before their emigration to America, were the free inhabitants of the British dominions in Europe, and possessed a right, which nature has given to all men, of departing from the country in which chance, not choice has placed them, of going in quest of new habitations
So if migration and settling somewhere new is a right, and if such rights can only be violated by an explicit and irresistible authorization, let us go back to the Constitution. Is the preventing of laws that block migration for twenty years an irresistible and explicit authorization of Congress’s power to block new migrants from entering the country? If I say that you are not allowed to steal from me for twenty years, is the only irresistible interpretation that at twenty years and one day I’ve given you permission to take all my things? Not by logical necessity. The fact that there is a set period of time in which an action is explicitly disallowed does not necessarily mean that said action is actually allowed outside that time frame. If you walk into court having burglarized me after the twenty year period I specified and argued that gave you permission to take my things, no court should or would consider that an acceptable defense unless I specifically authorized that after that period you could take my things. For all they know I was simply engaged in joking word play. The same thing would hold with the government. An active and explicit mandate in the Constitution is needed to abrogate an individual’s rights.
I do admit that this is a non-standard interpretation of the Constitution, and many conservatives might argue more for an approach from original intent. This intent might include having a society with a united people not divided by religion, culture, or language. However, I will say any interpretation of the Constitution that, if consistently followed, would have led to slavery being considered automatically illegal should hold some appeal for anyone with even a slight appreciation of the horrors of that institution (the horrors of which ought to be kept in mind before waxing nostalgic about John Jay’s time which was almost united in the legalization of that institution). Given that intent can include morally reprehensible intentions, forcing those intentions to be explicit in order to be acted upon deserves consideration.
Indeed this interpretation should also hold appeal for those who believe in individual rights and seek to limit the expansion of government power generally. But even if this is rejected, the founding documents do not make clear that citizens should follow a citizenist philosophy. The purpose of the Constitution was to set up a government respecting rights and the citizen’s wishes at once which might be considered somewhat citizenist. But should the citizens themselves take such a narrow view? The Constitution, rightfully so, makes no hint at what the American people should want, only things the government should want and can and cannot do.
So should the citizens themselves be citizenist? It is one thing to argue that a government should be citizenist with some constraints, but another to argue that the people themselves should be citizenist. To this a more appropriate document to use would be the Declaration of Independence. After all, this is the document which justifies the very existence of the independent United States. If the principles laid down in the Declaration are false, then the Constitution itself should be considered an illegitimate document as it would not have been brought into existence without American independence.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
If all men are created equal and have the unalienable right to pursue happiness, then by what right does the American people have to not consider their welfare equally to those of their fellow citizens? The Declaration does go on to say that the people should form governments “in such form, as to them shall seem most likely to effect their Safety and Happiness,” but this does not imply that there is no consideration for non-citizens. Indeed what is one of the signs of a government so unnaturally tyrannical that it should be abolished? Immigration restrictions:
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
Blocking immigration is one of the points which was used to justify rebellion from Great Britain. So why should the American people support a school of thought that advocates just such an action? In doing so, they are attacking the justification for the very existence of their own independent state. The United States was founded on principles which argue for universal human rights and for which the right of migration is an important one of them. Thus if any of the founding documents suggest what philosophy Americans should have, they cannot be so construed as to support a philosophy which denies the right of migration.