What if Justice Demands Open Borders (The American):
Obama described America as “a nation of laws,” but what is law? The American form of government emerged from a tradition of moral and political thought of which two of the most eminent representatives are Thomas Jefferson (1743-1826) and John Locke (1632-1704) (but which has roots going back to the High Middle Ages, to scholars of canon law like Gratian, scribbling in cold monastic scriptoria
In this tradition, certain basic imperatives of conscience and common sense (do not kill, steal, etc.) are distilled into the idea of natural rights, or natural law (ius naturale). Ethics informs politics, and in time it came to be seen that “to secure [natural] rights” is the only valid reason that “governments are instituted among men,” and that they “derive their just powers [only] from the consent of the governed,” as the Declaration of Independence states. It follows that a government cannot justly make any law it wants. Positive law must conform to natural law.
While the tradition of Locke and Jefferson can adapt to new times, and can critique itself and make discoveries, both philosophers were right to affirm the primacy of natural rights, to believe that the task of governments is to protect them, and to found the legitimacy of government on the consent of the governed in the form of a social contract.
The social contract is more than a mere myth, yet it is not quite a fact. The consensual roots of the governments of the English-speaking world go back to medieval feudalism, with its vertical bonds between suzerains and vassals established by ceremonies and oaths; and even further back, to the deference which the last Roman emperors, and many subsequent secular rulers, paid to that great voluntary institution, the Christian church.
Yet few, if any, alive today have ever signed a social contract. Nor should consent be identified too closely with democracy, because democratic governments can violate human rights, too, and they are not justified in doing so just because they have majority support.
If “government by the consent of the governed” is an unattainable ideal, however, that does not make it irrelevant. It is a standard of justice, to which some policies, and some regimes, are closer than others.
One lesson to take from the Lockean tradition is the imperative for freedom of migration. A country must not prevent peaceful migration by force, because migrants are not violating natural law. They are violating no one’s natural rights. They have committed no violence against persons or property. They are pursuing happiness, without threatening the lives or liberties of others. Coercion against them has no justification if governments are instituted among men to secure inalienable natural rights.
In the 19th century, before the liberal tradition of Locke and Jefferson was partially eclipsed by relatively illiberal political philosophies, the open borders policy implied by these basic ethical facts was actually practiced, for the most part, in the United States and Western Europe. As historian Harold James recalls:
Above all, people moved. They did not need passports. There were hardly any debates about citizenship. In a search for freedom, security, and prosperity… the peoples of Europe and Asia left their homes and took often uncomfortable journeys by rail and by ship, often as part of gigantic human treks. Between 1871 and 1915, 36 million people left Europe.1
World War I and the age of fascism and communism put an end to 19th-century freedom of mobility, but the way politicians talk about immigration, and the way a decent society treats illegal immigrants, show that we still know right from wrong. We don’t want our politicians to tell us that most human beings born into this world are permanently excluded from our country.
Most Americans seem to have more qualms about reporting illegal immigrants to the police, especially those with families or who came here as children, than about doing business or making friends with them. Our immigration laws are like the Prohibition laws of the 1920s. They are a scandal, not only because they are widely disobeyed, but because they are widely disobeyed by normal, decent people. And that is because they have no basis in natural law.
Advocates of immigration restrictions tacitly borrow from another political tradition, from the 17th-century English philosopher, Thomas Hobbes, spokesman for arbitrary and absolute power. Hobbes, long dead, is still with us in disguise. He has taken the form of a word, sovereignty, the uses of which encapsulates his philosophy and sustains his influence. Hobbes and the contemporary proponents of sovereignty relegate natural law to the background, or simply ignore or deny it.
The Hobbesian tradition tells people to obey sovereign governments, no matter what. By contrast, the Lockean tradition affirms that sometimes governments ought to be resisted. As one representative of the Lockean tradition, Martin Luther King Jr., argued:
One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."
Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality… Thus it is that I can urge men to obey the 1954 decision of the Supreme Court [desegregating the schools], for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.
We have treated King in the usual manner of prophets, honoring him after he is killed, but often ignoring what he said. Yet his words are directly applicable to immigration. Laws against migration, unlike laws against murder or theft, are not rooted in eternal and natural law, and they do not uplift personality.
The one thing I would have liked to have in is something specific about those who were brought here as children. That's the case where the right and the wrong of the matter is just inescapably clear. As Obama said:
And as I gave that commencement at Miami Dade, it broke my heart knowing that a number of those promising, bright students -- young people who worked so hard and who speak about what’s best in America -- are at risk of facing the agony of deportation. These are kids who grew up in this country. They love this country. They know no other place to call home. The idea that we’d punish them is cruel. It makes no sense. We’re a better nation than that. (Applause.)
It's a bit galling to borrow words from Obama, after his administration has been guilty of an unprecedently large number of deportations and he wasted political capital on Obamacare and now seems to be just trying to get votes in exchange for nothing. Still, he's right. What we're doing to illegal immigrants who grew up here is the disgrace of immigration restrictions concentrated to laser intensity.