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May 30, 2010



Those who find themselves burdened by a law or legal regime, or who object to it, will very often believe that they understand some relevant basic facts and realities in a way that the supporters of the law or regime do not. Often they will be correct in this belief, most likely. There's nothing unique to immigration law about this difference in knowledge. If this difference is sufficient to justify violation of the laws, there's no obvious stopping point for the rationalization. I suspect that a great deal of idealistic crime and illegality have been rationalized in just this way.

In the American political tradition, of course, law violation/revolution is thought to be justified under certain circumstances. But it's a possibility fraught with political, personal, and moral danger-- moral danger because one can do great harm to others and to one's own soul by acting on it. One might ask again whether this sort of thinking is consistent with, say, the teachings of the New Testament. Or with a sane appreciation of the valuable functioning of legal authority. John Brown probably had greater provocation for his rebellious actions than Thomas Jefferson and George Washington had. Do we admire John Brown as some sort of moral hero? I don't.


It is not too surprising that many Americans are unaware of the challenges of entering the country legally. That is unfortunate and it makes sense to try to help people understand the full complexity of immigration. I do not think, however, that this justifies in any way dismissing what people do understand from their own experience. Many people, especially in the west, are only too well aware of the problems of illegal immigration and these concerns are legitimate. I don't for a minute beleive that Americans are anti-immigrant Heck, virtually all of us come from immigrant families. What Americans are against is the current disarray and confusion created by a pourous border and moribund immigration policy and politics. We want sensible policy and order and this is what we don't have with immigration from the South. We understand that rule of law has served us well, by contrast to Mexico, which in some states is controlled by drug lords. Is it any wonder that Americans would worry about people coming in from such a place? Of course, most people coming in illegally just want to work for a decent wage, but the concern about immigration anarky is nevertheless understandable. California prisons attest to a significant problem with a criminal element of illegal immigration.
In spite of all these problems, I truly believe that Americans would support sensible policy, though some might grumble at first. So--if we build a fence and use technology to seal the borders fairly effectively, then develop a guest worker program and a more generous pathway to citizenship, I think this problem could be solved. After these things had happened we could deal with giving amnesty in an orderly way while making it clear that amnesty would NOT be the rule since the pathway to legal entry had been eased. I'm not quite sure what your last sentence above was saying--it seems to have been written in haste--but what I would like to hear from you is not overblown rhetoric, but some details about what you think would be sensible immigration policy. Blanket dismissal of the opinions of everyone else is hardly useful.

Nathan Smith

I'll start my response to SDS at the end, because this is the essence of the whole matter. SDS writes:

"John Brown probably had greater provocation for his rebellious actions than Thomas Jefferson and George Washington had. Do we admire John Brown as some sort of moral hero? I don't."

Now, one thing to observe here is that SDS does not make it clear why he thinks Brown is different from Washington/Jefferson. Obviously Washington and Jefferson acted in defiance of legally constituted authority, no less so I should think than Brown. The main difference seems to be that they were successful. But I'll put this interesting debate to one side because it's irrelevant. Any comparison between John Brown and illegal immigrants is invalid because Brown acted *violently,* illegal immigrants non-violently. Everyone agrees that violence is presumptively wrong and needs special justification. A defender of Brown would have to argue that Brown had proper and sufficient justification; and that could be debated. A defender of illegal immigration has no such burden.

As I've no doubt said before, and anyway it is obvious, *non-violent* disobedience to the law puts illegal immigrants in the company of many generally admired figures like Mahatma Gandhi, Martin Luther King, Socrates, Sir Thomas More, and the early Christian martyrs. But I'd put the ball in SDS's court: are there any examples of deliberate *non-violent* disobedience to a law regarded by someone as unjust, which we do not regard with admiration. I can't think of any famous ones. The closest thing might be drug dealers, who can in principle be non-violent, but even then the real concern tends to be that they usually are violent. Another example I might mention is Carlos, a friend of a friend I heard about who got arrested for trespassing on some kind of nuclear site; he was an anti-nuclear activist. I wouldn't regard him as especially admirable, but he seems harmless. It seems to me that non-violent open lawbreaking is generally either admirable or innocuous.

re: "In the American political tradition, of course, law violation/revolution is thought to be justified under certain circumstances."

All of this seems more applicable to violent than non-violent resistance to the law. The conflation of "law violation" and "revolution," in particular, misses this point. A revolution seeks to replace the state-- the agency claiming a monopoly of violence-- with a new one. Revolution seems almost by definition to be violent. That's not what we're talking about here.

"But it's a possibility fraught with political, personal, and moral danger-- moral danger because one can do great harm to others and to one's own soul by acting on it."

I would say that *violence,* whether with or without the sanction of "sovereign" legal authority, is a possibility fraught with moral danger that can harm one's own soul. I think those who enforced the Fugitive Slave Act, for example, harmed their own souls; likewise those who rounded up Jews in Nazi Germany; though both of these classes of persons were acting in accordance with the law. By contrast, it's not at all obvious to me that non-violent violation of the law can do great harm either to others or to one's own soul.

"One might ask again whether this sort of thinking is consistent with, say, the teachings of the New Testament."

Of course it is. The New Testament is a story of civil disobedience, of brave men teaching a new Gospel against the orders of the Sanhedrin and in the face of repeated harassment and sometimes death at the hands of the legally constituted authorities of the Jews and of Rome. The closest thing to a New Testament endorsement for universal obedience to the law is in Romans 13:1-- "the authorities that exist are ordained by God"-- but this has to be read bearing in mind that the existing authorities in Paul's time and more so thereafter were killing Christians, and were being disobeyed every time Christians worshipped. Paul's pastoral advice can't be read in a way general enough to imply an endorsement of contemporary US immigration laws without at the same time being general enough to imply that the Nazis were "not a terror to good works, but to evil... he is God's minister to you for good" (Romans 13:2-4). More plausibly, Paul was simply advising his fellow Christians to focus on spiritual self-improvement and not get entangled in political agitation against a Roman regime which at the time of writing he judged to be comparatively beneficent. Meanwhile, the teachings of Jesus Himself seem to come down on the side of radical non-violence. I don't see how it's possible to read the Sermon on the Mount attentively without coming away with grave doubts over whether there should be a state at all. The question is: is it consistent with the New Testament to work as an INS agent, forcibly separating families?

"Or with a sane appreciation of the valuable functioning of legal authority."

I would say that what is valuable is respect for people's natural rights, that is, for life, liberty, and (though this is more complicated) property. The functioning of legal authority may be valuable or not depending on whether it serves these ends. In America today, it by and large does serves these ends. In Nazi Germany or the Stalinist Soviet Union, the functioning of legal authority was profoundly and pervasively hostile to people's natural rights and was not valuable at all but the opposite. I would be interested to know whether SDS is alleging that this view, which does not take for granted that the functioning of legal authority is valuable, is "insane."

In any case, it's obvious that illegal immigration is not inconsistent with the valuable functioning of legal authority. There is a good deal of illegal immigration in America, and legal authority is functioning just fine. Indeed, to judge by the trend in crime rates, legal authority has been functioning better and better as illegal immigration has increased. Unless the fact of illegal immigration in itself undermines legal authority. But in that case, we have to ask what is valuable in the functioning of legal authority and what is not valuable or is positively harmful. Preventing theft and murder is valuable. Segregating foreign-born persons from the jobs where they would be most productive and the places they most want to live in, and often from their families, is not valuable.

re: "If this difference [in knowledge] is sufficient to justify violation of the laws, there's no obvious stopping point for the rationalization."

Well, there's one fairly salient stopping point: violence. If I know that a law is unjust and stupid because it has been made by very ignorant people, I may take it upon myself to disobey in a nonviolent way. I may even be quite open, if anyone asks me, in saying that this is what I am doing. But I might add that I wouldn't take the further step of violently resisting or rebelling against the stupid and unjust law. By this practice, which seems to be what illegal immigrants are doing, one limits the potential harms from lawbreaking and takes the risk upon oneself.

I hope that MS will seriously think about something. She writes that:

"if we build a fence and use technology to seal the borders fairly effectively, then develop a guest worker program and a more generous pathway to citizenship"

But what if, just for the sake of argument, this is impossible? What if the fence won't work? What if tunnels, ladders, boats through the Pacific and the Caribbean, low-flying planes, shipping containers, and/or other things I haven't thought of, turn out to be sufficiently effective alternative means of coming to America that the fence doesn't reduce illegal immigration much? The fence is a morally neutral means to achieve a bad end. I oppose it because I oppose preventing peaceful workers from seeking a better life in America; and it would be a shameful symbol because what it would be built to do is shameful; but building a fence is not in itself immoral and does not undermine America's heritage of freedom. Every other measure proposed by immigration restrictionists is morally wrong in itself, not merely because it is a means to achieving a bad end, and is dangerous to America's heritage of freedom. For example, the Arizona law violates civil liberties, those of native-born Americans as well as those of immigrants. So let's suppose the fence is built and illegal immigrants are still finding their way in. At what point do you say, "OK, I guess we can't 'seal the borders fairly effectively,' not without wholesale violation of rights and the loss of our legacy of freedom. We'll just have to accept that there's a *de facto* right to migrate whether we like it or not, and adapt our laws to accommodate that?" Or will you never agree to say that?

Because we're already there. We've been ramping up enforcement efforts for decades and people keep coming. It's slowed down lately but probably only because of the recession, and even if enforcement has something to do with it, there are still many millions of illegal immigrants here and more coming. And the enforcement efforts that we are engaged in already have an intolerable moral price, namely a reprise of the most horrific abuse of slavery, the forcible separation of families. And actually, we have 'sealed the borders fairly effectively' in one sense, namely in the sense that the number of people who come is a tiny fraction of those who want to come. We do manage to deter the vast majority of potential entrants. But those who come in are still enough to comprise a significant demographic and seriously to compromise the rule of law in the United States.

The irony in all this is that I tend to get painted as a starry-eyed radical while my interlocutors pose as commonsense conservatives. Yet what I'm advocating is an effort to make institutional adaptations to social and demographic realities in the light of some serious thinking about justice, the nature of law and government, the rights of individuals, etc. It is MS and others who think like her who are the utopians, or dystopians. They want to 'seal the borders fairly effectively,' that is, to accomplish a great feat of social engineering which has never been accomplished before, which policymakers have striven to do for decades without success.

What I am proposing is, first of all, to abandon one pretension of the ideology of power, namely that the federal government in Washington, DC has the final say over who should and should not be present in America. We should accept that people have a right to migrate, though not necessarily to enjoy the protection of our laws on equal terms with native-born Americans immediately after they have done so. Once that principle is established, I have thought a good deal about how to ameliorate the resulting changes for those who stand to lose by them. But while I don't mind explaining my ideas on that question, for the time being that discussion is premature. At present it's just good guys vs. bad guys, illegal immigrants who are exercising their natural rights vs. INS agents who are violating them. It's appropriate to focus on the victims whose innocence is beyond dispute, namely US-born children of illegal immigrants whose parents are subject to deportation, and illegal immigrants who were brought to America as young children and know no other home. That forcible separation of families in the former case, and deportations of *de facto* Americans from early childhood in the latter case, are outrageous injustices, cannot be seriously doubted. But this advocacy is the proverbial thin end of a wedge. There is no way to reconcile moral decency and the rule of law short of accepting the right to migrate.


In the age of technology, it is impossible to build and effective fence? I'm not buying that. So you think a "right to migrate" trumps everything else including national sovereignty and rule of law? I'm also not buying that.


I think the illegality of undocumented immigration is certainly corrosive to law and order as well as justice. Further, I think that the state has legitimate grounds for regulating the movement and concentrations of those who have not grown up in or adopted the basic common agreements that come with being an American.

That said, I think building a fence helps with neither of those problems, and indeed makes them worse. The more harassed by the law undocumented workers are, the less likely they are work within it. Further, the more difficult and expensive it is to come to the United States, the less likely anyone who doesn't feel an affinity to the US and its values is to return home after they've made their nut.

Finally, I think that technology may soon become sufficient to catch drug smugglers at the border - as long as the system isn't overwhelmed with otherwise harmless immigrants and migrants circumventing the impossible immigration restrictions.

Nathan Smith

I think I basically reject the concept of national sovereignty. Whenever an appeal to national sovereignty is made, someone is usually trying to rationalize doing something bad. Possibly the concept of national sovereignty conflates good things and bad things. If so, we should try to reformulate the good things in terms of other concepts ("the desirability of non-overlapping jurisdictions of comparable civil authorities"). Then we should try to kill the concept.

I wonder, does MS think that the right to practice one's religion "trumps national sovereignty and the rule of law?"

As for the "age of technology" thing, well, we apparently couldn't rescue people from a hurricane zone in 2005; now we can't stop an undersea oil leak; and we can't stop suicide bombings in Iraq. And in the case of the border we have a special problem, namely that since the people coming aren't attacking us we have to take into account their human rights. I would say that our effort to keep them out at all is a violation of their human rights, but even if you don't accept that, it's clear that there's a moral difference between killing an illegal immigrant and killing an invading soldier. If illegal immigrants started parachuting out of small planes at night, I'm sure the Air Force could shoot the planes down. But to do so would be sheer unmitigated murder. When you can't kill the people because they're not actually doing anything wrong, the deterrent effect of whatever degree of force you are, rightly or wrongly, willing to use is vastly diminished, and also, people are able to try multiple times, probing, experimenting, finding the holes. No, I don't think we'll ever reduce illegal immigration much below what it has been in recent decades through any operations at the border.


Nato writes, "I think the illegality of undocumented immigration is certainly corrosive to law and order as well as justice. Further, I think that the state has legitimate grounds for regulating the movement and concentrations of those who have not grown up in or adopted the basic common agreements that come with being an American."
Yes--exactly. As for the fence-- if you combine the fence with more generous immigration policies and a good guest worker program, why wouldn't a techie fence work? If nothing else it would, as you say, prevent drug trafficking--no small gain. I believe that most people who come would much prefer to come legally as guest workers or potential citizens. If these pathways were relatively easy, people would come legally and then they could go back and forth. This would no doubt greatly reduce illegal flow across the border, and a fence would just reinforce law and order, following Robert Frost dictum that "good fences make good neighbors."
So you reject national sovereignty, Nathan? What does that even mean? You reject the way the world is organized? In favor of what? One world government? Yeah--THAT'S going to work! Be reasonable. I really don't think you can equate freedom of conscience and belief with this odd "right to migrate" that you champion. Most of us can't even make sense of such a "right." It might have made more sense in the 19th century, but now it just sounds ridiculous. As for migration being a "human right," well, I just disagree with you. NO ONE, BTW is planning to attack illegal immigrants, hence the argument for the fence. As for your tech comparison between the oil spill, Katrina and a fence, I will only say--catastrophes are a different order. No doubt if they happened every day, we'd handle them a lot better. I fully suspect that ways will be found to deal much more effectively with future oil spills. Building an effective border fence is an entirely different type of project and I think doable. I actually believe that with our birth rate dropping we are going to need to bring in more immigrants in the future. That is fine by me, but we need to maintain our rule of law and, I believe, national sovereignty and ease the path for legal immigration.

Nathan Smith

MS's tone of incredulity that I "reject the way the world is organized" is very odd. "The way the world is organized" has, after all, undergone several major changes in the last century, starting with World War I, the dissolution of the old Russian, Austrian, and Ottoman empires, and Wilson's new push for national self-determination; then again after World War II with the founding of the United Nations followed by the dissolution of the European colonial empires; then yet again in 1989-95 with the collapse of communism and of many other dictatorial regimes, as well as the emergence of practical international law doctrines endorsing humanitarian intervention against genocide. Before all these changes, there were people pushing to make them happen, people who "rejected the way the world is organized." Abraham Lincoln, Woodrow Wilson, Ronald Reagan ("tear down this wall"), and George W. Bush rejected the way the world is organized. It's a very normal thing to do.

I'm not sure what it means to say that "no one is planning to attack illegal immigrants" at a time when illegal immigrants are regularly being seized and deported by force. Maybe MS means that no one is planning to kill illegal immigrants. Well, good, but then, I don't think many openly and specifically advocate the forcible separation of families or the deportation of foreign-born persons who have lived in America since infancy, either, yet it's happening. Instead, people demand 'secure borders' and leave the dirty details to hirelings. If we do start killing illegal immigrants, I have no doubt that everyone will still be assuring us that after all, no one wanted or planned it quite that way, and anyway, we'll keep it to a minimum and stop doing it as soon as we 'secure the border.'

I've let the discussion become sidetracked by dwelling on the technical question of whether it's *possible* to 'secure the border.' MS thinks it is possible, even though I don't think there are any historical examples of such a feat of social engineering being achieved. But suppose, for the sake of argument, that it isn't possible. And surely, given the failure of so many efforts to secure the border, we must at least be ready to entertain the *possibility* that no enforcement measures consistent with civil liberties for US citizens and not employing lethal violence against illegal immigrants can ever reduce the annual illegal influx under 400,000 or so, or the resident illegal population below 10-15 million. If that is the case, what does MS suggest we do? She supports a guest worker program and amnesty, I think, *once we have 'secured the borders'.* But what if it's impossible to 'secure the borders' in that sense (though of course they are secure enough in the legitimate sense of that phrase, namely against armed invasion)? Would she rather endure the 'current disarray' forever, or would she rather abandon the idea of 'national sovereignty,' in the 20th-century sense that each and every human being within a territory of 6 million square miles should have the approval of the federal government to be there, and accept "the right to migrate?"

MS asks "in favor of what" do I reject national sovereignty, "one world government?"-- as if one can't deny an apple without affirming an orange. No, I reject national sovereignty in favoring of doing what is right. But of course I realize that's a bit question-begging, because some may think that national sovereignty is a factor in determining what is right. Two examples may illustrate:

1. I am a young man from a large and very poor family in a village in southern Mexico. I am enterprising, energetic, and capable, but there are no good ways for me to put these qualities to use in my home village, where there are hardly any jobs and those there are procured through corrupt connections. I have a cousin who migrated to Houston and has done well for himself. He says he'll have work for me if I come, and I could make money to send back to my family for food, clothes, shelter, education, and medical care that right now they can't afford. To go would involve a long journey and, in particular, a dangerous border crossing through the deserts of Arizona, but I think the odds are good that I'd make it, and do a lot of good for my family. In those terms, I think migrating would be morally a very right thing for me to do. On the other hand, in doing so I would violate the sovereignty of the United States. Should national sovereignty be a factor (morally) in my decision, and if so, how important?

2. I am a US president with command of powerful armed forces that are capable of overthrowing, on my orders, many of the world's most despicable regimes. In particular, the Baathist tyranny in Iraq has directly murdered hundreds of thousands, possibly millions, and through its pursuit of nuclear weapons and other weapons of mass destruction that has provoked international sanctions has indirectly killed hundreds of thousands more children. For sake of argument (though of course it's debatable in reality), suppose that there is no doubt that regime change would improve the lives of Iraqis and lead to greater respect for their rights. On the other hand, an invasion would violate Iraq's national sovereignty. To what extent should this factor influence my decision?

I would say that in both case (1) and case (2) the answer is: Very little or not at all. There may be other cases (the Georgia-Russia conflict for example) where sovereignty is, for complicated reasons, a more morally compelling factor. In general, though, I think national sovereignty should be given much less weight in all kinds of decisions. And because the term "sovereignty," unlike the similar but milder term "jurisdiction," has indelibly absolutist connotations, I think the best course would be to try to quash the concept altogether.

There's nothing inconceivable or even particularly strange about a world without national sovereignty. No concept that can be validly interpreted as 'national sovereignty' existed in ancient or medieval times. It is a modern invention which I think can be traced to the Peace of Westphalia and the ideology of Thomas Hobbes, and only after World War I, under the impetus of Woodrow Wilson, was there an attempt-- very bloody as it turned out!-- to render it universal. Since World War II the concept has been in retreat on many fronts, most notably in Western Europe with the formation of the EU, and in another way through novel legal entities like the UN. Yet it's interesting that MS, when confronted with the rejection of national sovereignty, immediately jumps to the idea of "one world government." Somehow people have this sense that there has to be a sovereign, there has to be some final arbiter in this world, instead of the Sovereign, the Judge of all. People still haven't gotten used to the idea of the stone hewn out of a mountain, tearing down the kingdoms of this world.

MS approvingly quotes Nato's remark that "the state has legitimate grounds for regulating the movement and concentrations of those who have not grown up in or adopted the basic common agreements that come with being an American," but I can do the same. After all, my "don't restrict immigration, tax it" proposal involves regulating movements and concentrations of the non-American-born, only by different means. Specifically, coercion would be exercised only against their property and not against their persons.

It would be interesting to know why MS thinks "might have made more sense in the 19th century, but now it just sounds ridiculous." What was different about the 19th century? Certainly not the capacity of the United States to absorb immigrants: at a time when Americanization has gone global, and when a century of increasing urbanization underlines how little we suffer from scarcity of land (because we're leaving it behind in favor of living in more crowded places), why should open borders be more difficult now than then? Anyway, questions of right and wrong can't be so historically contingent as that. Naturally, I'm not in the least bothered by the word "ridiculous": the same would surely have been said of integrated schools a century ago. If MS "can't make sense of" the idea of a right to migrate, I'd advise her to try a little harder. I have a right to walk in the street; that means someone is presumptively wrong to prevent me from doing so by force, even if they can, for example, make a compelling utilitarian case for it. Likewise it's wrong to block the entry of migrants without a compelling reason (e.g., if the migrant is a known terrorist).

I wasn't saying that freedom of conscience is the same issue as freedom of migration. My point there was to sow doubts in MS's mind about the concept of sovereignty. I posed a question; how would she answer it?


It made more sense in the 19th cntury because travel was much slower and terrorists were not generally trying to blow up people in foreign lands.
No time to write more now...

Nathan Smith

But our immigration restrictions are not remotely related to terrorism prevention. We routinely shut out people from demographics that have no terroristic tendencies while letting in other demographics that do have them. One of the benefits of recognizing a right to migrate is that we could orient our border policies towards terrorism prevention instead of labor protectionism.


"One of the benefits of recognizing a right to migrate is that we could orient our border policies towards terrorism prevention instead of labor protectionism."


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